46th ABA National Conference on Professional Responsibility

Schedule

All Times are Eastern Time

Wednesday, June 2

10:45 - 11:00 AM 

Welcome and Opening Remarks

Alice Neece Mine, Chair, ABA Center for Professional Responsibility
Conference Planning Committee

11:00 AM- 12:15 PM

Plenary A
Effective Advocate or Just a Jerk? The Ongoing Discussion of Lawyer Incivility

What does it mean to be uncivil? Is that just a derogatory way to label a hard-nosed advocate or does it represent a continuing threat to the integrity of the profession? This session will discuss how lawyers and judges do and should treat one another, the Courts, opposing parties, clients, and, in the case of judges, persons appearing before them. The discussion will focus on the ever-present concern about incivility, unprofessionalism, and bullying tactics used in the profession, whether and when such behavior violates the Rules of Professional Conduct, whether mandatory civility codes are workable or enforceable, the role that regulators and the judiciary should or do play in curbing incivility and fostering professional practice, and what can and is being done to address the issues. 

Moderator:
William Slease, Professional Practice Program Director, State Bar of New Mexico

Panelists:
Heidi K. Brown, Director of Legal Writing and Associate Professor of Law, Brooklyn Law School
Hon. David K. Thomson, New Mexico Supreme Court Justice
David A. Grenardo, Professor of Law, St. Mary’s University School of Law

12:15 - 12:30 PM - BREAK

12:30 - 1:45 PM - Concurrent Breakout Sessions

Breakout #1
Lawyer Musical Chairs: Lawyer Mobility and Law Firm Dissolution

This session focuses on the professional responsibility issues that arise when lawyers change places of employment or retire. Law firm instability and dissolution arising from such events are encountered frequently in today’s legal services industry. Lawyer mobility presents difficult legal and ethical challenges for individual lawyers, their firms, and the clients they represent. Questions arise about when, how, and what to communicate with clients; who will continue providing services to the clients (both desirable and undesirable ones) after the split; whether lawyers can be held to a contractual notice period or other potential restrictive covenant; and how profits and liabilities will be apportioned among the parties.

Moderator:
Susan Saab Fortney, Professor of Law and Director, Program for the Advancement of Legal Ethics, Texas A&M University School of Law

Panelists:
Robert W. Hillman, Professor of Law, Fair Business Practices and Investor Advocacy Chair, UC Davis School of Law
Tyler Maulsby, Partner, Frankfurt Kurnit Klein + Selz PC
Janis Meyer, Of Counsel, Clyde & Co.

Breakout #2
The Model Rules and First Amendment Freedoms: An exploration of Model Rules 8.2 and 8.4(g)

With its 2016 amendment to Rule 8.4(g) to prohibit discrimination and harassment in lawyers’ conduct related to the practice of law, the ABA recognized the importance of creating more effective measures to foster diversity and end harassment and discrimination in the legal profession. (A recent study of the International Bar Association reflects that the prevalence of bullying and harassment in the United States far exceeds global averages.) While 25 jurisdictions have a rule that adopts some version of anti-discrimination and anti-harassment provisions, few states have adopted ABA MR 8.4(g) verbatim or with minor changes since 2016.

Some states have expressly declined to adopt the amendment citing infringement on constitutional rights and religious freedom. Opponents of Model Rule 8.4(g) argue that the rule is overbroad and violates the “freedom of religion” and “freedom of speech” protected by the First Amendment. On the other hand, lawyer regulation has withstood Constitutional scrutiny when a lawyer improperly solicits an accident victim, makes extrajudicial statements to the media during a pending civil or criminal proceeding, recklessly attacks the integrity or fitness of a judge or solicits campaign contributions for judicial elections, or is excluded from the profession for expressing views of white supremacy.

This interactive program will explore whether Model Rule 8.4(g) places lawyer regulation on a new First Amendment battleground or is a replay of battles that have been fought and won by the bar.

Moderator:
Jessica E. Yates, Attorney Regulation Counsel, Colorado Supreme Court Office of Attorney Regulation Counsel

Panelists:
Marni E. Byrum, Partner, McQuade Byrum, President, Virginia State Bar
Jason C. DeSanto, Senior Lecturer, Northwestern Pritzker School of Law
Joan M. Fortin, Esq., Chief Executive Officer, Bernstein Shur  

1:45 - 2:30 PM - Break

2:30 - 3:45 PM -  Concurrent Breakout Sessions

Breakout #3
Behavioral Ethics: Recognition, Acknowledgement, and Action

Mistakes happen. Generally, however, mistakes do not always constitute professional misconduct. How lawyers process and respond to mistakes may not only affect the rights of their clients but also the lawyer’s professional and financial future. There is no “one size fits all” approach to addressing these concerns. Behind simple and serious mistakes, there are a myriad of reasons why lawyers engage in avoidant or problematic behaviors.

This session will use a behavioral ethics lens to follow the lifecycle of lawyer lapses, beginning with a specialized clinician as she explains the science of what happens physically and psychologically when an individual discovers he/she has made a serious error. Then travel the lifecycle of a lapse as we learn where lawyers turn after an ethical and/or malpractice problem occurs. Along the way, find out what educators, regulators, and malpractice advisors can do to improve the legal profession’s response. Finally, brainstorm with a leading academic as she discusses the latest research on how lawyers react to mistakes and ethical lapses.

Moderator:
Newton N. Knowles, Attorney, State Bar of California, Client Security Fund

Panelists:
Melissa M. Lessell, Partner, Deutsch Kerrigan LLP
Sarah Myers, Executive Director, Colorado Lawyers Assistance Program
Catherine O’Grady, Professor of Law, The University of Arizona James E. Rogers College of Law

Breakout #4
Where Were the Lawyers? The Lawyer as Whistleblower: Conflicting Obligations Governing Lawyers’ Conduct

Whenever a corporate scandal is unearthed, the question arises where were the lawyers? While the duty of confidentiality is recognized as almost sacrosanct, there are exceptions. This panel of experts will examine the ethical concerns and issues that lawyers face when confronted with problems that may require a report to external authorities.  Is a report mandated or permitted? Will there be protections from retaliation?  Are there repercussions for non-compliance? Will the lawyer face disciplinary action? What are the laws that govern lawyers’ conduct? Is a bounty ever allowed for whistleblowing on your own client? Join us as we consider the important issues facing lawyers in this catch-22 dilemma between the duty of confidentiality and obligations to report client wrongdoing.

Moderator:
Wendy J. Muchman,  Harry B. Reese, Professor of Practice, Northwestern Pritzker School of Law

Panelists:
John McKnight, Senior Litigation Counsel, Sanford Heisler Sharp, LLP
Robert Malionek, Partner, Latham & Watkins LLP
Gregory Keating, Member, Epstein, Becker and Green

4:00 PM - Remo Reception
Michael Franck Professional Responsibility and Rosner & Rosner Young Lawyer Professionalism Award Ceremony

Thursday, June 3

11:00 AM - 12:15 PM

Plenary B
Regulatory Reform: Debating the Key Issues

Ferment is widespread about all manner of lawyer regulatory reform. But exactly what substantive issues are in play. Join us for a rollicking debate on proposed change in four areas – alternative business structures, multijurisdictional practice, other authorized paraprofessionals providing legal services/UPL, and lawyer business development, including paying for referrals, lawyer-matching services, and advertising. On each, one change proponent and one change opponent will tee up the issues, and the audience will then be invited to participate, in lightning-quick rounds. Bring popcorn and join the debate.

Hosted by William D. Henderson, Stephen F. Burns Professor of Law, Maurer School of Law Indiana University and Peter R. Jarvis, Partner, Holland & Knight

12:15 - 12:30 AM - BREAK

12:30 - 1:45 PM - CONCURRENT BREAKOUT SESSIONS

Breakout #5
Regulatory Reform, Part Deux: Lessons Learned So Far From Three States

Utah and Arizona have taken big leaps into reforming lawyer regulation, and California has been working hard at it for years. For jurisdictions considering proposals for change, or simply considering consideration, what can we learn from the paths taken by these three states regarding the politics, implementation, obtaining buy-in from those impacted, and other facets of re-regulation? Without delving into the merits of change in this program, three speakers deeply familiar with these efforts will offer thoughts on how their processes worked, what didn’t work, why, and the sources of political support and opposition. Think of it as a YouTube How-to video for lawyer regulatory reform.

Moderator and Panelist:
Lynda Shely, The Shely Firm

Panelists:
Erik A. Christiansen
, shareholder, Parsons, Behle, & Latimer
Emilio Varanini
, President California Lawyers Association

Breakout #6
How Does AI Work and What Is/n’t It Telling Me? How to Be Tech Competent in 2021

How do you know that you’re meeting the ethical standards for tech competence? Data transparency and implicit bias, for instance, are among the real concerns in the adoption of technology-based solutions. This tech-savvy panel will demo artificial intelligence and machine learning applications that lawyers use and supervise. It will also highlight the specific questions lawyers should be asking about the limits and benefits of that technology in order to comply with their ethical obligations.

Moderator:
Rochelle D. Washington, Practice Management Advisor, DC Bar

Panelists:
Tara Emory, Director of Consulting, Driven, Inc.
Dov Slansky, Attorney, Founding Member, Vice President, Solution Engineering, Litify
Mindy Rattan, Litigation Team Lead, Bloomberg Law Analysis

1:45 - 2:30 PM - BREAK

2:30 - 3:45 PM - CONCURRENT BREAKOUT SESSIONS

Breakout #7
Consumer Litigation Funding: The Basics, Current Regulatory, Ethical, and Confidentiality Issues

With all the hubbub in the legal press about the booming commercial litigation finance market, some forget that litigation funding for consumer claimants has been around for some time now. As the market has matured, a number of state legislatures and regulators now patrol the field. Learn from a panel of experts the basics of common transactions, the reach and scope of the market today, and how to evaluate the legal and legal ethics issues involved, including champerty and maintenance, prohibition on outside control of litigation, fee-sharing, and conflicts of interest. Our panel will also discuss the important confidentiality, work product, and privilege issues, including a recent survey of all known decisions on discovery of litigation funding information.

Moderator:
Lucian T. Pera, Partner, Adams and Reese LLP

Panelists:
Ronnie Mabra, the Mabra Firm
Eric Schuller, President, Alliance for Responsible Consumer Legal Funding;
Anthony Sebok, Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University

Breakout #8
Conducting an Effective Law Firm Audit

Law firms of all sizes--whether individually, though their ethics counsel, or through malpractice insurers--conduct ethics audits to review the firm’s systems, policies, and procedures. This helps identify weaknesses and areas of potential improvement to promote compliance with the ethics rules and reduce exposure to malpractice claims and associated risks. Such audits are becoming increasingly commonplace. Whether serving as part of a law firm’s office of general counsel or asked to conduct an outside audit, lawyers should know how to effectively plan for, conduct, report and advise, and follow up on an ethics audit. This program will discuss these processes to assist the professional ethicist in performing this essential service.

Moderator & Panelist:
Mark Bassingthwaighte, Risk Manager, ALPS

Panelists:
James J. Grogan, Adjunct Professor, Loyola University of Chicago, School of Law
Terri Garland, Vice President & Senior Loss Prevention Counsel at Attorneys’ Liability Assurance Society, Inc., (ALAS)

4:00 PM - Reception on REMO

Friday, June 4

11:00 AM - 12:15 PM - CONCURRENT BREAKOUT SESSIONS

Breakout #9
Lawyering in the Pandemic: Business as Unusual: Practical and Ethical Highlights

The global COVID-19 pandemic disrupted almost every part of American society, and the legal profession was no exception. Long-term remote work raises questions about face-time expectations, professional development, at-home technology needs, and the personal and familial demands that have challenged many lawyers. Working remotely also requires attorneys to heed the practical and ethical issues surrounding security and confidentiality of client data, computer programs, physical files, telephone calls and video meetings. Many firms both large and small pivoted to remote models literally overnight, yet, that quick shift may have resulted in unintended business consequences. Please join us for an invigorating discussion that will raise awareness of the trials and tribulations of lawyering in a pandemic where business is anything but usual.

Moderator:
Aria Eee, Executive Director, Board of Overseers of the Bar, Maine

Panelists:
Emil J. Ali, Partner, McCabe Ali LLP
Eileen Garczynski, Equity Partner, Sr. Vice President, Ames & Gough;
Jared Correia, Founder and CEO, Red Cave Law Firm Consulting
Daniel E. Pinnington, President and CEO, LawPro

Breakout #10
A New Normal? Addressing Circumstances that Create Poor Judgments, Particularly in Remote Interactions

As lawyers, we make judgments and decisions daily, and the decisions we regularly make have consequences for those around us, including those we work and interact with, as well as those affected by our work. Our minds, personalities, life experiences, and the social structures around us influence how we take in, process, and use information in our decision making, often in the form of biases, assumptions, and expectations. In light of COVID-19, how we work has been fundamentally changed, moving much or all of our interaction into remote, virtual spaces. This session will explore the impacts of social distancing and remote work on various aspects of legal practice, including interactions with clients and colleagues, depositions and interviews, and hearings and trials. We will also discuss measures to identify and address the opportunities and challenges of remote interaction, and how biases, assumptions and expectations may affect these interactions, during this unprecedented time.

Speakers:
Lea S. Gutierrez, Chief Diversity and Inclusion Officer, Cook County State's Attorney's Office
Destiny Peery, Principal Consultant, The Red Bee Group

12:15 - 12:30 PM - BREAK

12:30 - 1:45 PM - CONCURRENT BREAKOUT SESSIONS

Breakout #11
Examining the Exam: The Role of the Admission Process in Public Protection. A look at current practices and possible alternatives.

When COVID-19 pummeled the U.S. in March 2020, it quickly became apparent that many things were “up for grabs.” By April, states were evaluating whether and how to offer bar exams and the ABA urged states that canceled their bar exams due to COVID-19 to consider interim admission alternatives for law grads. Approximately half of the states developed interim admission protocols.

Like other “givens” in life, the 2020 Pandemic has raised questions about the role of a bar exam. Join our panel as it discusses how the Uniform Bar Exam was developed, is evolving, and where it is headed; whether and how bar exams and other admission processes protect the public; and the role law schools and their pedagogy play in the way we educate, train, and test lawyers in order to protect the public.

Moderator:
Hon. Laurance B. VanMeter, Justice, Kentucky Supreme Court.

Panelists:
Judith Gunderson, President, National Conference of Bar Examiners
Dean Katharine Traylor Schaffzin, University of Memphis Law School
Professor Leslie Levin, University of Connecticut Law School

Breakout #12
Wellness Concerns in the Profession and How Recent Events Have Compounded Them?

Surveys show a major increase in the number of U.S. adults who report symptoms of stress, anxiety, and depression during the pandemic. The legal profession is not immune to this increase. Even before the pandemic, lawyers struggled with both mental health and substance use challenges at a higher rate than the general population. Join us as we discuss the current and long-term impacts of the pandemic on attorney well-being as well as proactive steps that can be taken to improve the health of the legal profession and ultimately the justice system.

Moderator:
Tracy L. Kepler, Risk Control Consulting Director for CNA’s Lawyers’ Professional Liability Program.

Panelists:
Dr. Doris Gundersen, Chair of the Colorado Medical Society’s Well-being Committee
Patrick R. Krill, Principal and Founder of Krill Strategies, licensed and board-certified alcohol and drug counselor
Rhonda V. Magee, Professor of Law at the University of San Francisco

1:45 - 2:30 PM - BREAK

2:30 - 3:45 PM

Plenary C
Lawyering in the DC Spotlight

In recent years, lawyers played strong supporting roles, and sometimes even leading roles, in such national dramas as the Mueller investigation, the Trump impeachment hearings, and the presidential election litigation. Among the players have been lawyers who represent public officials and agencies, who investigate public officials, who serve in public agencies, and who are themselves public officials. Throughout, the lawyers’ professional conduct was questioned, scrutinized and debated: for example, were the lawyers sufficiently or overly zealous, honest and fair, too reticent or too revealing, and by what standards should their conduct be judged? This panel will review the recent years’ public events through a “legal ethics” lens to illuminate not only the lawyers’ conduct but also the applicable professional rules and standards of lawyer conduct.

Moderator:
Bruce Green, Louis Stein Chair of Law; Director, Stein Center, Fordham University School of Law

Panelists:
Ellen C. Brotman, Founder, Brotman Law
Lonnie Brown, A. Gus Cleveland Distinguished Chair of Legal Ethics and Professionalism & Josiah Meigs Distinguished Teaching Professor, University of Georgia School of Law
Rebecca Roiphe, Trustee Professor of Law, Co-Dean for Faculty Scholarship, New York Law School