Social Media in Your Practice Divorce Mediation Employment Agreements - September 2014 Volume 25 / Number 2
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September 2014 Volume 25 / Number 2 Social Media in Your Practice Divorce Mediation Employment Agreements
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features
contents
10 20 COLUMNS
Social Media 101: For Employment
Lawyers, It’s Not Just for Agreements: Recent President’s Message...................... 2
Marketing Anymore Connecticut Decisions A Message from the
By Daniel A. Schwartz Concerning Trade Executive Director.......................... 7
Whether you are a social media Secrets and Time to Go Pro Bono.................... 28
novice or an old pro, this Confidentiality, Part 2 Building Your Practice.................. 29
article will guide you through By Joseph J. Blyskal Supreme Deliberations................. 30
the basics of marketing your Employment agreements
Young Lawyers............................. 34
practice with various social restricting the right to
media sites as well provide tips compete and limiting the use
of confidential information
regarding their usefulness in
litigation. continue to present fertile DEPARTMENTS
ground for litigation despite an
Upcoming Events Calendar............4
economic upturn. Part two of
15 this two-part article highlights
CBA News & Events........................6
Call for Nominations: significant cases over the past
Professional Discipline Digest.........8
CBA Awards year and a half impacting non- Ethics Opinion.................................9
Get involved! Learn about the disclosure clauses and trade Court Decisions.............................32
criteria of the CBA awards and secret litigation. Classifieds.....................................36
nominate a deserving colleague
for one of the association’s
prestigious awards. 25
Connecticut Italian-
American Bar
16 Association “Festa Della
Divorce Mediation: Primavera” Remarks
Mediating Financial By Justice Lubbie Harper, Jr.
Disputes On May 21, 2014, the
By: Carmina K. Tessitore Honorable Lubbie Harper, Jr.
Divorce mediation is gaining was the guest speaker at the
popularity for its economic and Connecticut Italian-American
efficient resolution of financial Bar Association’s “Festa Della
disputes between parties in Primavera” event. Read Justice
dissolution proceedings. This Harper’s inspiring remarks
article explores the methods about the advancement of
used while mediating the diversity within the legal
financial piece of the divorcing community and the dedication
couple’s marriage. the association has maintained
in the promotion of diversity.
Connecticut Have an idea for an article? Contact editor@ctbar.org.
All suggestions are welcome.
LAWYER
2014-2015 Officers Connecticut Lawyer Staff Manuscripts accepted for publication become the prop-
Mark A. Dubois, President Advertising: Jessica Pace, jpace@ctbar.org erty of the Connecticut Bar Association. No compensa-
William H. Clendenen, Jr., President-elect Editor: Alysha Adamo, aadamo@ctbar.org tion is paid for articles published.
Monte E. Frank, Vice President Executive Director: Douglas S. Brown, dbrown@ctbar.org
Asker A. Saeed, Secretary Graphic Designer: DR Anderson, danderson@ctbar.org The Connecticut Lawyer (ISSN 10572384) is published
Matthew D. Gordon, Treasurer Copyright 2014 by the Connecticut Bar Association. All monthly except in January, June, and August by the
Sylvia K. Rutkowska, Assistant Secretary-Treasurer rights reserved. The copying, duplication, transferring, Connecticut Bar Association, 30 Bank Street, New
Kimberly A. Knox, Immediate Past President reproducing, reusing, or reprinting of the Connecticut Britain, CT 06051-2276. CBA membership includes a
Lawyer is strictly prohibited without permission. Pub- subscription. Periodicals postage paid at New Britain, CT,
Connecticut Lawyer Advisory Committee and additional offices.
Elizabeth C. Yen (Chair), Myles H. Alderman, Jr., Frank S. lication of advertising does not imply endorsement of
Berall, Joseph A. Cipparone, Dean M. Cordiano, Jeffrey products, services, or statements made concerning them. POSTMASTER: Please send address changes to
C. Dannenberg, Proloy K. Das, Brian J. Donnell, Steven All advertising copy is subject to approval. The editor Connecticut Lawyer, PO Box 350, New Britain, CT
J. Errante, Emily A. Gianquinto, Theodore W. Heiser, reserves the right to reject advertising. The goal of the 06050-0350.
Noah Jon Kores, Charles D. Ray, Fred D. Sette, Gregory A. Connecticut Lawyer is to provide a forum for the free
Sharp, Jeffrey M. Sklarz, Bolesh J. Skutnik expression of ideas. The opinions and positions stated
in signed articles are those of the authors and not those
of the Connecticut Bar Association. The Connecticut Bar
Association welcomes the submission of articles by its
members. For editorial guidelines, please e-mail
editor@ctbar.org.
President’s Message
The Crisis in Leadership
Mark A. Dubois is the 91st president of the
Connecticut Bar Association. He is counsel
with the New London firm of Geraghty &
Bonnano where he represents individuals
accused of ethical misconduct and malprac-
tice. As Connecticut’s first chief disciplinary
counsel from 2003 until 2011, he established
an office that investigated and prosecuted
attorney misconduct and the unauthorized
practice of law. Attorney Dubois also serves
as an expert witness on matters of ethics and
malpractice and teaches ethics at UConn
Law School.
No one ever said being CBA president of assault weapons and high-capacity mittee folks came calling, my first ques-
was an easy or fun job. (Actually, that’s magazines. The law had been passed in a tion was whether we should be doing this
not exactly right. Fred Ury told me the job rush after the Newtown tragedy and was stuff at all.
was fun, but I think he was being ironic.) being challenged in federal court. Though
The advantage we American lawyers
I learned that things were not rosy pretty it had survived at the District Court level,
have over our brethren in Europe is that
quickly when, 21 days into my term, a the matter was on appeal at the Second
our profession has existed for a relative-
member of the House of Delegates stood Circuit. After the attorneys general of 23
ly short time period, roughly the same
up and announced that we were suffer- states joined an amicus against the law,
length of time our country has existed.
ing a crisis in leadership. My first thought some felt we should support it.
But the concepts of professional identity
(which I did not verbalize) was that it
My purpose here is not to take sides on that enervate us have existed for a much
was surprising I could go so far wrong in
whether the decision to join the brief was shorter period, having grown from a se-
three weeks. How much further could I
right or wrong, but to comment on the ries of lectures and writings beginning in
lead us down the wrong path in the re-
purpose, the process, and what the expe- the mid-19th century leading to the 1908
maining 49 weeks of my term?
rience teaches us about the association. Model Code of Professional Conduct, the
What brought everyone together that Many have said that the CBA should not foundation of our modern ethics frame-
night was a proposal by the Human involve itself in public issues, but rather work.
Rights and Responsibilities Section that limit our focus on courts, clients, and the
In the various source materials leading
the CBA House of Delegates sign onto a profession. That is certainly a safe posi-
to the first national model code of ethics
brief being prepared by the Brady Cen- tion, one which avoids divisive internal
we find a clear choice to define ourselves
ter in support of Connecticut’s legisla- strife, and one which many nonprofits
as members of a profession rather than
tive attempt to limit private ownership follow. So, when the Human Rights Com-
2 Connecticut Lawyer September 2014 Visit www.ctbar.org
a business or other commerce. With that bound to be loyal to right and justice. A are all on the table. Those who feel that
came the notion that we hewed to higher lawyer who votes differently than a straw the most recent amicus debate reveals
ideals than protecting turf, maximizing poll might suggest she is not being disloy- flaws in the association and a danger-
revenue and limiting competition. Con- al if she believes that in voting as she did ous drift from our core principles should
cepts of public duty and advancing the she is exercising her independent judg- make their voices heard to their House
common good are found along with such ment and fulfilling her fiduciary duty to members or leadership. CL
things as avoiding conflicts and maintain- the entire organization. If those who de-
ing competence. From that, the idea that signed our form of corporate governance
we might occasionally make our voice had wanted a pure democracy, they could
heard on matters of public or societal have chosen that model. Instead, we have
concern is not too big a leap. a representative system, which includes
a great deal of autonomy and indepen-
Part of the discussion after the most re-
dence. This fits the model of lawyering
cent kerfluffle is whether members of
we all know and live by.
the House of Delegates, when exercising
their judgment on behalf of the associa- The House of Delegates has now begun a
tion, are bound by the wishes of certain process of reviewing our form of gover-
of their constituents who choose to ex- nance and will be meeting as a committee
press an opinion or whether they ulti- of the whole throughout the fall to discuss
mately must do what they think is in the and debate whether what has worked in
best interest of the organization. Here the past should be the model for the fu-
again, guidance can be found in the foun- ture. Issues of whether we should be a
dational materials where we read about pure democracy, whether we should limit
the necessity for lawyers to remain inde- our public voice to matters solely involv-
pendent in judgment and action. Though ing courts and the profession, and wheth-
bound to be loyal to clients, they are also er we need more or less layers of process
The New CBA
Website Has
Arrived!
You are just a few steps away from all of the
benefits of our new website.
Learn about the “5 Ps” to help get you
started:
• Review your Profile
• Check your Privacy settings
• Set your Preferences
• Interact with People
• Execute Patience
Visit www.ctbar.org for more information.
Connecticut Lawyer September 2014 3
CBA UPCOMING EVENTS CALENDAR
September* 30CLE: VA Benefits Training
9:00 a.m. @ CBA Law Center in New Britain
Litigation Section Meeting
11 LGBT Section Meeting 6:00 p.m. @ Carmen Anthony Steakhouse in New Haven
6:00 p.m. @ Pullman & Comley LLC in Hartford
12Section/Committee Chair Training
October*
8:00 a.m. @ CBA Law Center in New Britain
13House of Delegates Constitution Meeting 6 Estates and Probate Section Meeting
9:00 a.m. @ CBA Law Center in New Britain 6:00 p.m. @ Quinnipiack Club in New Haven
1516th Annual Verrilli-Belkin Workers’ Compensation 7
Family Law Section Executive Committee Meeting
Charity Golf Event 6:00 p.m. @ First and Last Tavern in Middletown
10:30 a.m. @ Shuttle Meadow Country Club
in Kensington 8
Audit Committee Meeting
5:00 p.m. @ CBA Law Center in New Britain
16Insurance Law Section Executive Committee Meeting
Paralegals Section Meeting
6:00 p.m. @ CBA Law Center in New Britain
6:00 p.m. @ CBA Law Center in New Britain
17The Legal Entrepreneur: Starting Your Own Law Firm, Part 1
YLS Executive Committee Meeting
6:00 p.m. @ Quinnipiac University School of Law
in North Haven 6:30 p.m. @ CBA Law Center in New Britain
Construction Law Section Meeting 9
YLS Women in the Law Committee “Every Body
6:00 p.m. @ Inn at Middletown in Middletown Has Something to Say” Networking Event
5:30 p.m. @ Kelly’s Gastro Pub in New Haven
Criminal Justice Section Meeting
6:00 p.m. @ Chuck’s Steak House in Rocky Hill 10 CLE: When Students Don’t Attend School: The
Law’s Response to Truancy and Chronic Absenteeism
Elder Law Section Meeting
9:00 a.m. @ CBA Law Center in New Britain
6:00 p.m. @ Graduate Club in New Haven
Federal Practice Section Executive Committee Meeting 14 Business Law Section Meeting
6:00 p.m. @ Quinnipiack Club in New Haven 6:00 p.m. @ Quinnipiack Club in New Have
Paralegals Section Meeting 15 Elder Law Section Meeting
6:30 p.m. @ CBA Law Center in New Britain 6:00 p.m. @ Graduate Club in New Haven
Professional Ethics Committee Meeting Professional Ethics Committee Meeting
6:00 p.m. @ Quinnipiack Club in New Haven 6:00 p.m. @ Quinnipiack Club in New Haven
Tax Section Meeting 16 Real Property Section Meeting
6:00 p.m. @ Quinnipiack Club in New Haven 6:00 p.m. @ The Farms Country Club in Wallingford
18CLE: A Different Take on Psychological 17 CLE: District of Connecticut Bench-Bar Conference
Evaluations in Juvenile Court 8:00 a.m. @ St. Clements Castle in Portland
9:00 a.m. @ CBA Law Center in New Britain
CLE: Workers Compensation Courtroom Medicine
Commercial Law and Bankruptcy Section Meeting 7:30 a.m. @ St. Francis Hospital and Medical Center
6:00 p.m. @ Milford Yacht Club in Milford in Hartford
Real Property Section Meeting 20 Board of Governors Meeting
6:00 p.m. @ Quinnipiack Club in New Haven 6:00 p.m. @ Testo’s Ristorante in Bridgeport
19CLE: Connecticut Benefits Corporation Act 21 CLE: Federal Practice 101
9:00 a.m. @ CBA Law Center in New Britain 6:00 p.m. @ CBA Law Center in New Britain
22House of Delegates Meeting 22 Commercial Law and Bankruptcy Section Meeting
6:00 p.m. @ CBA Law Center in New Britain 6:00 p.m. @ Quinnipiack Club in New Haven
23
Environmental Law Section Meeting 24 CLE: Federal Tax Institute of New England
6:00 p.m. @ Graduate Club in New Haven 7:15 a.m. @ Hartford Downtown Marriott in Hartford
27The Agriculture Gag Laws—Your 1st Amendment 27 CLE: Depositions 101
Rights, Your Health, Animal Welfare, and Our 6:00 p.m. @ CBA Law Center in New Britain
Environment
10:00 a.m. @ Yale Law School in New Haven
For more information or to register, visit www.ctbar.org/
29 CLE: Short Calendar 101 calendar. You may also call (860)223-4400 to register.
6:00 p.m. @ CBA Law Center in New Britain
Joint Meeting: Planning and Zoning Section * This listing is subject to change. Visit www.ctbar.org/
and Disability Section calendar for the most up-to-date events schedule.
6:00 p.m. @ Graduate Club in New Haven
4 Connecticut Lawyer September 2014 Visit www.ctbar.org
CONNECTICUT CHAPTER
The following Chapter Members are recognized for
Excellence in the field of Alternative Dispute Resolution
Thomas Barrett Steven Certilman Hon. Fred Freedman Hon. Elaine Gordon Hon. Beverly Hodgson Hon. Robert Holzberg
West Hartford Stamford Westport Westbrook New Haven Hartford
Richard Renehan James Robertson Jay Sandak Hon. Jonathan Silbert Christopher Wanat
Waterbury Waterbury Stamford New Haven Branford
Check your preferred available dates or
schedule appointments online, directly
with Academy Members - for free.
Visit www.ConnMediators.org/quicksearch
Connecticut Bar Association
News
& Events
Peers and Cheers
The law firm of Carter Mario Injury Lawyers is pleased to an-
nounce the success of its Ninth Annual “CarterCares” Scholarship
Program. Each winner demonstrated their understanding of the
seriousness of bullying—both physical and cyberbullying—by
preparing a presentation encouraging their peers to take a stand (L to R): CBF President Peter Arakas; James W. Cooper Fellows Past
against bullying in their schools and communities. In addition to Chair Brad Saxton; contest winner Olive Kuhn; James W. Cooper Fel-
the scholarship awards, the honorees were presented with a cita- lows Essay Contest Committee Chair Jack G. Steigelfest; contest win-
ner Colleen Bennett; James W. Cooper Fellows Education and Program
tion on their achievements from the office of Connecticut Attor- Committee Chair Dwight H. Merriam; contest winner Natalie Wallington;
ney General George Jepsen. and Connecticut Supreme Court Senior Justice Christine S. Vertefeuille.
Murtha Cullina LLP is pleased to welcome The Connecticut Bar Foundation James W. Cooper Fellows
Robert A. Heinimann, Jr. as an associate in the program sponsored its fourteenth Annual Quintin Johnstone
Trusts and Estates Department. Attorney Heini- Statewide High School Essay Contest this year. The contest
mann will be responsible for the development asked Connecticut high school student participants to assume
and implementation of estate plans for clients. the role of a counsel for the State Department of Education who
His practice will also include estate and trust ad- has been asked by the commissioner of the department to pre-
ministration, probate proceedings, tax planning, pare an analysis of the proposed plan to restrict school menus
Robert A. and business succession planning. and to ban certain foods brought to school by students. Essays
Heinimann, Jr. were evaluated by a panel of legal professionals; Jack G. Stei-
gelfest, of Howard Kohn Sprague & FitzGerald LLP, served as
Dana M. Hrelic, of Horton Shields & Knox
chair of the James W. Cooper Fellows Essay Contest Committee
PC, was honored as “Star of the Year” by the
and Dwight H. Merriam, of Robinson and Cole LLP, served as
American Bar Association Young Lawyers Divi-
chair of the James W. Cooper Fellows Education and Program
sion (ABA YLD) for her dedication and leader-
Committee.
ship to the division. As part of the Resolutions
Team, she shepherded two resolutions from the
The National Academy of Distinguished Neutrals (NADN), an
mid-year YLD Assembly to the annual House of
association whose membership consists of mediators and arbi-
Delegates on behalf the division. Additionally, Dana M. Hrelic
trators distinguished by their hands-on experience in the field
she has been a parliamentarian, written resolu-
of civil and commercial conflict resolution, has recognized just
tions, and secured speakers. Attorney Hrelic has also acted as
11 attorneys and former judges as charter members of the Con-
vice-coordinator for the YLD’s National Conferences team and
necticut Chapter, including CBA members: Steven Certilman,
made valuable contributions on the YLD’s Truth in Law School
Hon. Elaine Gordon, Hon. Robert Holzberg, Richard Rene-
Education Task Force.
han, James Robertson, Jay Sandak, Hon. Jonathan Silbert,
and Christophe Wanat. The chapter’s executive committee
Schoonmaker George & Blomberg PC is pleased to announce
consists of Hon. Elaine Gordon, Richard Renehan, and James
that as of August 1, 2014, their office has relocated to 1700 East
Robertson. The organization has also launched its new website,
Putnam Ave, Old Greenwich, CT 06870. All phone numbers will
www.ConnMediators.org, which allows Connecticut firms to
remain the same.
quickly find a trusted local mediator or arbitrator by preferred
practice criteria or dispute type. CL
Wiggin and Dana LLP would like to congratulate their 2014
summer associate class, who participated in an eight-week sum-
mer program designed to provide a realistic view of associate
work and life. The summer associates worked on a variety of as-
In Memoriam
signments across practice areas and participated in various so- Christopher M. Dakin passed away on June 11, 2014 at the age
of 75. He graduated from Housatonic Valley Regional High School
cial and public service events. Two of the participants included
in 1957. He went on to graduate from Colby College and served
Laura Ann Keller, who attends the University of Connecticut
in the United States Navy for four years. In 1968, he graduated
School of Law, and Brandon Miller, who attends Benjamin N.
from the University of Connecticut Law School. Attorney Dakin
Cardozo School of Law.
ran his own law firm for many years in Salisbury until his retire-
ment. CL
6 Connecticut Lawyer September 2014 Visit www.ctbar.org
A Message FROM THE Executive Director
“The times, they are a-changin’…”
- B. Dylan
knowledge, experience, and expertise to attend programs (although that is al-
across areas of practice. ways good). We are looking for innova-
• Helping each other advance our ca- tive program ideas and members who
reers, operate and grow productive want to share their expertise as faculty
Douglas S. Brown is the executive director of law practices, and find personal satis- members. We will also be bringing you
the Connecticut Bar Association. Prior to his faction in our profession. online programming and teleconferenc-
time at the CBA, Attorney Brown practiced • Empowering those new to the profes- es to suit your busy schedules. To learn
law with Tyler Cooper & Alcorn; served as
sion with advice, guidance, mentoring, more, check out www.ctbar.org/CLE.
in-house counsel and then as a business
executive with a global logistics company; and support necessary to succeed.
Advocating for members in govern-
and most recently served as a consultant • Advocating for lawyers’ professional
and executive coach. He continues to teach
ment. Connecticut’s legislative session
and economic interests before judicial,
strategy, leadership, and innovation at The begins in January. Your CBA legislative
Malcolm Baldrige School of Business at Post
legislative, and regulatory bodies.
advocacy team, led by Bill Chapman, is al-
University. • Acting in a spirit of inclusiveness and
ready gearing up for the session by work-
open communication.
ing with our substantive sections and our
It’s been said that the only constant is • Promoting civil discourse and collabo-
Legislative Policy and Review Commit-
change. And that has certainly been the ration among members of the legal
tee to identify and update our legislative
case at the bar association in the last year. community of all backgrounds and
priorities. As a member, you have a voice
On a personal level, my part-time assign- personal and professional interests.
in Hartford. If you’d like to know more
ment as acting executive director became • Advancing and supporting our profes-
about participating, reach out to Bill at
full-time and permanent on July 1st. I am sional obligation to provide public in-
bchapman@ctbar.org or visit www.ctbar.
honored and privileged to be given the terest and pro bono legal services.
org/Legislative.
opportunity to serve this great organi- • Advancing and protecting the rule of
zation and help us rise to the challenges law in all branches of government and Collaborating with other bar associa-
ahead. fostering the rights and liberty of the tions. The CBA is uniquely positioned
people of Connecticut. to work with fellow bar associations to
Last spring I worked with the Long-range improve the lives and practices of all law-
Planning Committee to develop our stra- Association Goals yers in Connecticut. It is my hope that this
tegic plan for the future. This month I From these key focus areas spring con- year will mark the beginning of a new era
will share some of the concepts from the crete goals and benchmarks for success. of collaboration and collegiality.
strategy and highlight some of the con- These goals include:
tinuous improvements you can expect Having fun. Our members work very
Growing and engaging with our mem- hard in a very serious business. We take
during this new bar year (and beyond).
bership. Just as you seek more clients, our role for our members seriously, too.
Mission we seek active members who engage in Yet, we also know that our community
Our strategic planning group crafted the our community in meaningful ways. This becomes stronger when we connect on a
following mission statement derived might mean coming to a program, par- personal level and give ourselves the op-
from our constitution: Our mission will ticipating in a section, seeking a leader- portunity to relax and connect. We’ll be
be to foster a community of attorneys ship position, serving those in need, or working directly and with our sections
who will together: (a) create opportuni- coming to a social event. When members to facilitate more of these opportunities
ties for growth and development in the are engaged, our community thrives and in the coming year. To that end, be sure
practice of law, (b) advocate for Connecti- grows. Spreading the word about the to mark your calendar for our big spring
cut’s attorneys and legal professionals, value of membership is the job of every events: Annual Awards Celebration on
(c) promote and engage in community member—and we are here to help you do April 16 and Connecticut Legal Confer-
and pro bono legal services, and (d) ad- that. ence and CBA Annual Meeting on June
vance access to justice and the rule of law. 15. See more events at our full calendar
Providing practical education that
Strategic Plan makes a difference. Our new education at www.ctbar.org/Calendar.
Our strategic plan identifies the follow- team, led by Attorney Suzanne Hard, is Let’s move forward together and make
ing key focus areas to guide our decision- working with our members and outside this year another of positive and lasting
making: experts to bring you the very best in CLE change.
• Providing opportunities for members and other educational opportunities this
to receive and share high quality legal year. We are looking for more than people Onward!
Connecticut Lawyer September 2014 7
Prepared by CBA Professional Discipline
Professional Discipline Digest Committee members from public infor-
mation records, this digest summarizes
decisions by the Statewide Grievance
Professional Discipline Digest
Committee resulting in disciplinary ac-
tion taken against an attorney as a result
of violations of the Rules of Professional
Volume 23, No. 3
Conduct. The reported cases cite the
specific rule violations to heighten the
By Michael F. Romano awareness of lawyers’ acts or omissions
that lead to disciplinary action.
Reprimand ordered for violation of not respond to voice mails and e-mails. Circuit appeal; the attorney was not dili-
Rule 8.1(2) of the Rules of Professional The attorney was found to have failed gent in withdrawing from the complain-
Conduct and Practice Book § 2-32(a)(1) to keep the complainants reasonably ant’s Second Circuit appeal; and the at-
where the attorney failed to respond to a informed about the status of his work, torney did not protect the complainant’s
grievance complaint without good cause failed to act with adequate competence interests when he remained in the Second
despite the finding of no attorney-client and reasonable diligence, and misrepre- Circuit appeal as attorney of record; and
relationship or no payment of retainer sented to the complainants the status of in that it was prejudicial to the adminis-
to the attorney. Walsh v. Sebadduka, #13- their matter. The attorney was also found tration of justice to not ask the court for
0350 (4 pages). to have violated Practice Book § 2-27(d) permission to withdraw from the pend-
where he failed to accurately register his ing litigation prior to withdrawing. Sid-
Presentment ordered for violation of
office address with the Statewide Griev- diqui v. Koleci, #10-0440 (10 pages)
Rules 1.1, 1.3, 1.4(a), and Rule 8.1(2) of
ance Committee. Richard v. Callahan, #13- Attorney ordered by agreement to at-
the Rules of Professional Conduct and
Practice Book § 2-32(a)(1) where the at- 0400 (5 pages). tend two three hour in-person continu-
torney failed to respond to a grievance Presentment ordered by agreement to ing education courses in legal ethics and
complaint without good cause and where consolidate all pending disciplinary mat- family law after the grievance panel found
the attorney was paid a retainer to rep- ters before the court, including the find- probable cause the attorney violated Rule
resent the complainant in a matter and ing of probable cause that the attorney 3.4(5) of the Rules of Professional Con-
thereafter did not have any communica- violated Rules 8.4(3) and 8.4(4) of the duct and additional allegations of viola-
tion with the complainant or take any Rules of Professional Conduct by issuing tion of 3.3(a)(1) and 8.4(3)(4) ) of the
action with regard to the complainant’s Rules of Professional Conduct were filed.
a bad check and ignoring his obligation to
matter; the attorney was also found to Manna v. Schmid, #12-0811 (9 pages).
make filing fee payment good. Waterbury
have violated Rule 1.5(a) of the Rules of JD Grievance Panel v. Ghent, #13-0261 (6 Reprimand ordered and the attorney
Professional Conduct and Practice Book pages). was ordered to attend two three-hour
§ 2-27(d) where the attorney’s fee was in-person continuing education courses
deemed unreasonable and the attorney Presentment ordered by agreement to
in legal ethics and law office manage-
failed to accurately register his office ad- consolidate all pending disciplinary mat-
ment. The attorney was also ordered
dress with the Statewide Grievance Com- ters before the court, including finding of
to make restitution to the complainant
mittee. Punancy v. Callahan, #13-0382 (5 probable cause that the attorney violated
in the amount of $4,000 for violation of
pages). Rules 1.15(e) and 8.1(2) of the Rules of
Rules 1.3, 1.15(e), 1.16(d), and 8.1(2) of
Professional Conduct and Practice Book
Presentment ordered for violation of the Rules of Professional Conduct and
§ 2-32(a)(1). New Haven JD GA #7 Griev-
Rules 1.1, 1.3, 1.4(a), 8.1(2), and Rule Practice Book § 2-32(a)(1) where the at-
ance Panel v. Piombino, #13-0496 (6 pag-
8.4(3) of the Rules of Professional Con- torney was retained in a marital dissolu-
es) tion with a $5,000 retainer and where the
duct and Practice Book § 2-32(a)(1)
where the attorney failed to respond to Presentment ordered due to the attor- complainant reconciled with her spouse
grievance complaint without good cause; ney’s prior disciplinary history where and requested the attorney withdraw
where the attorney was retained to cor- the attorney was found to have violated the dissolution action and return any un-
rect the name on a mortgage release and Rules 1.1, 1.3, 1.16, and Rule 8.4(4) of the earned funds. The attorney was found to
to file a name change for the complainant Rules of Professional Conduct in that the have lacked diligence by not withdrawing
and despite informing the complainant attorney was not competent by not being the action as well as was found to have
he had filed the name change, the attor- aware of, or educating himself on, the ap- failed to promptly provide an accounting
ney had failed to do so. The attorney did propriate way to withdraw from Second (continued on page 36)
8 Connecticut Lawyer September 2014 Visit www.ctbar.orgFormal and informal opinions are drafted
ETHICS OPINION by the Committee on Professional
Ethics in response to inquiries from CBA
members. For instructions on how to
Prior Work Conflict of Interest
seek an informal opinion and to read
the most recent informal opinions, see
the CBA Web page for the Committee
and Reimbursing Filing Fees on Professional Ethics at www.ctbar.
org/?ProfessionalEthics. CBA members
may also research and review formal and
Informal Opinion informal opinions in Casemaker.
2014-05
You have asked this committee’s opinion inference to your client. You have offered malpractice exposure. Further, your
regarding (1) whether a potential con- to refund your client’s legal fees, which conduct does not reflect any action that
flict of interest requires your withdrawal amount to $1,000.00. Additionally, your could be construed as an attempt to miti-
of representation or merely a disclosure client has paid approximately $2,500.00 gate your malpractice exposure at the
to the client of the potential conflict and in filing fees to USCIS, which you would expense of your client’s interests. To the
relevant facts; and (2) whether you can like to reimburse. Your client wishes to contrary, you have promptly and candidly
reimburse the client the cost of filing fees continue with you as her lawyer. admitted the mistake to both the client
she has paid in the proceeding. and trial counsel for DHS. You have taken
I. Prior Work Conflict
steps to correct the mistake and asked
You represent a client for the purpose of The first issue presented is whether your
that the mistake be attributed to you and
obtaining a Green Card. You (or a non- error or your firm’s error creates a po-
not to your client. You have taken the ad-
lawyer in your firm) made a mistake in tential or actual conflict under the Rules
ditional step of providing your client with
connection with part of the Green Card of Professional Conduct. This scenario is
a written letter explaining the error and
application, on what is called an I-130 often called a “prior work” conflict. See
the potential consequences of the mis-
petition, when a hand written petition, Mark A. Dubois and James F. Sullivan,
take. See Rule 1.4 of the Rules of Profes-
signed by your client, rather than a typed Connecticut Legal Ethics & Malpractice
sional Conduct.
petition, was submitted with United (2013) at 55-56. Per Rule 1.7(a)(2), the
States Citizenship and Immigration Ser- conflict issue is whether, if you continue We see no indication that your mistake
vice (“USCIS”). The handwritten petition the representation, “there is a significant has interfered with or will interfere with
indicated that a previously submitted risk that the representation…will be ma- your professional judgment or that you
I-130 petition was approved when, in terially limited by” your personal inter- will fail to pursue appropriate courses
fact, it was revoked. The handwritten, ests, in this case your desire to mitigate of action on your clients’ behalf. Accord-
signed I-130 petition was approved. Two your malpractice exposure. As the au- ingly, the committee is of the opinion that
years later, at a final adjustment hearing, thors of the commentary to Rule 1.7 note: you may continue your representation
it was discovered that the handwritten of your clients. If, however, upon reflec-
Even where there is no direct adverse-
I-130 petition incorrectly reported that tion, you assess that there is a significant
ness, a conflict of interest exists if there
the previous I-130 petition had been risk that you would take actions to cause
is a significant risk that a lawyer’s abili-
“approved” when it should have been your client’s I-130 petition to be denied
ty to consider, recommend, or carry out
reported as having been “revoked.” As a for reasons other than your mistake,
an appropriate course of action for the
result, the trial counsel for the Depart- thereby limiting your firm’s malpractice
client will be materially limited as a re-
ment of Homeland Security (“DHS”) had exposure, there would be a clear conflict
sult of the lawyer’s other responsibili-
the I-130 petition sent back for a review. of interest under Rule 1.7(a)(2), requir-
ties or interests….the critical questions
The Immigration Court closed your cli- ing your withdrawal from representing
are the likelihood that a difference in
ent’s file without prejudice to reopening the client.
interests will eventuate and, if it does,
it once the resubmitted I-130 petition is
whether it will materially interfere II. Reimbursing the Filing Fees
approved or revoked.
with the lawyer’s independent profes- As to the second aspect of your inquiry,
After learning of the mistake, you prompt- sional judgment in considering alter- the Rules of Professional Conduct do not
ly met with your client in your office and natives or foreclose courses of action prohibit you from reimbursing the filing
explained to her, in her own language, the that reasonably should be pursued on fees your client has paid over the past five
mistake you had made. You also provided behalf of the client. years. Rule 1.8(e) of the Rules of Profes-
her with a written letter explaining the sional Conduct prohibits financial assis-
On the facts presented, we see no indica-
error and the potential consequences of tance to a client. On these facts, however,
tion that your continued representation
the mistake. The client signed the letter. reimbursing the filing fees is not “finan-
of the client presents such a risk or would
You also advised her to speak to other at- cial assistance” within the meaning of
affect your ability to properly represent
torneys to confirm your explanation. You Rule 1.8 (e) because here the reimburse-
your client. Any steps you take to advance
apologized to the trial counsel for DHS ment is restitution and so falls outside
your client’s I-130 petition will have the
twice and asked that there be no negative the prohibition of Rule 1.8. CL
secondary effect of mitigating your firm’s
Connecticut Lawyer September 2014 9Daniel A. Schwartz
is a partner in the
Social
Hartford office of Ship-
man & Goodwin LLP
where he represents
employers in matters
involving employment
Media 101:
discrimination, restrictive covenants,
human resources, retaliation and
whistleblowing, and wage and hour
issues. He is also the author of the
Connecticut Employment Law Blog
(http://www.ctemploymentlawblog.
For Lawyers,
com), which has been recognized
by the ABA Journal as one of the
best 100 legal blogs for the past
five years. Attorney Schwartz is
a member of the CBA Labor and
Employment Law Section, serving
It’s Not
on its executive committee for
many years.
Just for
Marketing
Anymore
By Daniel A. Schwartz
So you’ve done it. You’ve finally taken the
leap into social media and signed up for an
account on LinkedIn and Facebook. Congrats.
Before you start celebrating, let’s temper that with some reality. You’re running late by a few years. That’s
not to say that the reign of Facebook or LinkedIn is over. But there are subtle (and not-so-subtle) signs that
both social media websites may be reaching their limits.
Take Facebook, for example. According to a recent Piper Jaffray report on the habits of American teens,
in autumn 2012, 42 percent of teenagers said Facebook was their most important social media site. By
autumn 2013, that number had dropped to just 23 percent. Similarly, Instagram—a popular photo-sharing
app—was rated the most important site by 23 percent of the respondents. Still, a February 2014 study by
Pew Internet shows that Facebook is used by 57 percent of all American adults and 73 percent of those
ages 12-17.
10 Connecticut Lawyer September 2014 Visit www.ctbar.orgYou don’t need to understand the Inter- • The growth among older users (age Your Facebook Data.” Once there, click on
net to understand that where teens go, 65 and up) is striking, up from 13 “Start My Archive”; Facebook will down-
others will soon follow. Teen migration percent in 2009 to more than 43 per- load a copy of everything you’ve done in
caused the demise of MySpace (remem- cent. Eighty-nine percent of those be- your account.
ber?). So the question remains: Will Face- tween 18 and 29 years old use social
For litigants, Facebook is routinely
book face another teen migration? networking sites. Even among 30- to
viewed as a gold mine of information be-
49-year-olds, that percentage only
LinkedIn doesn’t quite share this prob- cause people tend to post lots of personal
drops to 78 percent.
lem. By June 2014, LinkedIn had over 300 information under the veil of privacy that
million active users . However, its usabil- Clearly, users aren’t going to wake up Facebook seems to provide. Of course,
ity has been criticized, particularly on its tomorrow and decide to just ignore so- those privacy settings do little good when
mobile apps, and it is still viewed primar- cial media. Indeed, like e-mail and other a lawsuit involves discovery requests that
ily as a way for people to look for jobs. communication methods before it, social are easy to comply with. In addition, don’t
media is now seen as an integral part of forget that people now use Facebook to
For lawyers, the uncertainty of the fu-
day-to-day life. send messages directly on the site (no
ture of social media makes it challenging
more e-mail or text messages), so be sure
to plant your roots. For marketing, what Smartphones are driving this growth
to request those messages, too.
site(s) should you focus on to grow your even more. Sixty-eight percent of all mo-
practice? For litigation, where will you bile device users now use their phones LinkedIn
find that key piece of social media evi- to go online, and the majority of Ameri- LinkedIn is, to many people, the modern
dence to use? For staying current, how do cans now own a smartphone such as an day equivalent of a Rolodex. It allows
you keep up? iPhone or Droid device. you to “connect” with clients, former
co-workers, counsel, or even organiza-
In my view, the single most important at- We’ve come a long way in a very short
tions. While LinkedIn has adopted some
tribute a lawyer can have when it comes amount of time.
of Facebook’s style—with updates, com-
to social media is knowledge. Understand So, with knowledge being key, let’s talk ments, and “likes”—LinkedIn’s strengths
what’s out there, and understand how about the key drivers of social media and remain in the job seeking and networking
people are using it. Keep up on the trends. how you might use them in your practice. areas.
While you need not embrace social media
as closely as a college-age relative, ignor- The Big Three—Or is It Four? As a marketing tool, it’s a little clunky.
ing it will not make it simply go away. Facebook You can participate in groups, but some
It’s still the king of social media. Why? Be- of those groups are filled with spam. It’s
How can you gain knowledge? Experi-
cause it has the most users—more than hit or miss on whether that feature will
ment with some of these newer plat-
829 million each day and 1.32 billion be useful to you. But you can also send
forms. Download a few of their apps
(with a b) each month. Lawyers can use messages to your connections by for-
to your smartphone. Have your kids or
the site to “like” everyone from the ABA warding an interesting tidbit or just say-
work colleagues help you along. One rea-
to the CBA to local businesses to real-life ing hello. See that a connection has a new
son these sites are popular is because
friends as well. As a place to see and be job? Congratulate them.
they are easy to use. Don’t be intimidated.
seen, Facebook is tops.
And most of all, don’t give up. For litigation, the site is less helpful than
It now provides a wealth of information most. It may be useful when you want
Statistics Don’t Lie
for litigators as well. How? Well, it used to see if a person under a non-compete
For those who still believe that social
to be difficult for people to access their agreement has been making connections
media is just a fad that will pass the way
own Facebook data, and Facebook rou- with former customers, but because
of the hula hoop, it’s time to face reality.
tinely fought subpoenas. Now it’s easy LinkedIn is still pretty locked down—
Social media—in one form or another—
for a party to download his or her own that is, sharing photos or personal infor-
is here to stay. The statistics from a Pew
Facebook data—making it easy for an op- mation is not the primary purpose—its
Internet study from last year are pretty
posing party to request the information usefulness is limited.
amazing:
without too much fear that such a request
• Seventy-two percent of online adults Nevertheless, people may use LinkedIn
could be viewed as unduly burdensome.
use social networking sites. In 2005, to send messages, so it’s probably worth
just eight percent of online adults said First, go to “Account Settings.” Then click requesting messages there as well. Un-
they used such sites. on the text that says “Download a Copy of fortunately, LinkedIn does not have the
Connecticut Lawyer September 2014 11same “Download All” feature as Face- ter shorthand. But just search YouTube— lots of information, not only on Google+
book, so there may be more of a burden I’ll be getting to that below—for videos but on its search engine, too. So, want to
argument in the context of litigation. explaining Twitter and you can become a see if a litigant has been searching for
pro in no time. Another downside is that “ways to void a contract”? That might
Twitter
Twitter—which is limited to 140 charac- be uncharted territory for discovery, but
This site has quietly (or not so quietly)
ters—is pretty lousy for marketing. It’s there’s no good reason why it couldn’t
become the go-to source for news infor-
tough to have meaningful conversations and shouldn’t be tried.
mation and gathering. It broke usage re-
with contacts. And contacting clients on
cords during this summer’s World Cup. The Contenders
Twitter seems to have limited utility.
It’s quick and efficient and continues to Just beyond the Big Four are a whole
grow, albeit more modestly than in the For litigation, Twitter can be hit or miss. host of other sites that are typically more
past. For lawyers, it is probably the single What people share on that platform var- specialized. Want to just share photos?
best place to collect and share informa- ies wildly. Some people share comments; Instagram may be for you. Want to share
tion about current trends. Want to know others just share links to news articles. where you are? Foursquare is there.
about recent developments at the U.S. De- Thus, as a place to focus on, Twitter would
YouTube
partment of Justice? Follow @TheJusti- probably rank lower on the “needs” scale.
I know what you’re thinking. “You mean
ceDept. Interested in U.S. Supreme Court And like LinkedIn and Facebook, Twitter
that site where I can see videos of cute
cases? The key handle is @SCOTUSblog. has the ability for members to send each
kittens or the latest Internet meme?” Yes,
There are also useful hashtags—or Twit- other “direct messages.” People may use
that YouTube. But understand a few facts
ter “subjects” you can search for—such that instead of text messages or e-mail to
before you discount it.
as #ediscovery or #employmentlaw. try to avoid detection. Make sure to ask
for such communications in discovery. First, and most important, it’s the third
Twitter is also a useful information-gath-
most visited website in the U.S. That’s a
ering tool and marketing tool when used Google+
lot of eyeballs. Google has also been inte-
at conferences and events. For example, If you’ve heard of Google+—which is
grating YouTube into its blueprint more
if you wanted to follow the Connecticut Google’s version of a social network-
deeply. Don’t underestimate the power
Bar Association’s Connecticut Legal Con- ing site—it’s because Google is pushing
that Google has to drive traffic.
ference Meeting in June, you would just it heavily in its search results and in its
search for the hashtag #ctlegalconf and other applications. It’s everywhere. But Second, video is an increasingly popular
connect with others at the conference or, that doesn’t mean it is being used by a lot way to share information. Why? In part
if you can’t be there, just learn remotely of people, despite the statistics put out by because smartphones have become more
from people who will tweet key points of Google that show over 350 million “us- powerful. Now anyone with a phone can
presentations they are attending. ers.” video any event, anywhere, at any time. It
is a tremendous way to get your message
Of course, Twitter presents some down- Bottom line? If you are counting on using
out there unfiltered.
sides, too. It can be a bit intimidating to Google+ for development purposes, you
get started; these “@” addresses and may want to understand what you are How can lawyers use this? Kevin O’Keefe,
hashtags sound like a foreign language, getting yourself into. It’s a smaller net- the CEO of LexBlog, suggested a few ways
for example—not to mention other Twit- work. For litigators, Google now collects in a blog post, including videos that (1)
12 Connecticut Lawyer September 2014 Visit www.ctbar.orgmine. If a picture is worth a thousand Still, you can “claim” your business so you
words, an Instagram picture might be have some visibility.
worth more in litigation. People share
As a tool for litigation, I suppose that if
places they’ve been and people that
people were reckless enough to check in
they’ve been with. They may also leave
to a place that could later be used against
comments about them. In discovery, liti-
them, this site might have some use, but
gators should definitely ask for the par-
I’ve yet to see any court cases that have
ty’s Instagram photos. Keep your eye on
relied on such check-ins and its long-term
Instagram.
viability remains in serious jeopardy.
Vine
The Not-So-Small Sites
Vine is a video-sharing app created by
Twitter, so it shares some of the same fea- Snapchat
tures. It’s similar to Instagram except in This photo-sharing startup made head-
one important way: You can only create lines last fall for rejecting a multibillion-
and view videos that are six seconds long, dollar offer by Facebook to buy the busi-
which will then play in a continuing loop. ness.
respond to common questions you re-
ceive from prospective clients, (2) focus That’s it? Yes, that’s it. And since its Snapchat is a photo-sharing app that al-
on a niche area, (3) educate clients on re- launch in 2013, it has also become in- lows you to send “snaps” (basically, pho-
cent developments, and (4) show you as credibly popular. Like Twitter, people can tos) to people with whom you are con-
a “real” person. use hashtags to make their videos more nected. The quirk with this app is that
searchable. Check out #wakeandbake the sender’s photos self-destruct shortly
And for litigation? Well, certainly if peo- after being opened by the recipient. It’s a
ple are posting videos on the site, be sure and you’ll find (somewhat strange) vid-
eos of people waking up and, yes, using Mission Impossible-like creation. Photos
to ask for them. (And don’t forget about are typically “destroyed” within one to
YouTube’s popular competitor, Vimeo, as marijuana. You may even see people in
their company uniforms before work tak- ten seconds.
well.) But ask for a litigant’s “video his-
tory” too; you can see channels they may ing a bong hit. Others use hashtags like Why would people use this? For the ob-
have subscribed to, their “friends,” or #hatework or #mybosssucks. Again, as vious reasons: They don’t want embar-
even comments that they may have left a vehicle for discovery, it’s a brave new rassing photos to be shared with others,
on the site. It’s amazing the fingerprints world. or they don’t want others to know about
people leave even on sites like this. these photos. Oftentimes (most of the
For marketing, the medium hasn’t quite
time?), the photos are—how do we put
Instagram developed into something usable for law-
this delicately?—of a sexual nature.
Instagram is an extraordinarily popu- yers. Perhaps you’ll be creative. But as a
lar photo-sharing app that’s owned by marketing site for lawyers, you can prob- Are people using it? You bet. In droves.
Facebook. People share photos of them- ably do better. Indeed, by the spring of 2014 more than
selves (known as selfies), of things that 700 million photos were shared—every
Foursquare
they are doing and even motivational day. For people concerned about leaving
Foursquare and its companion app,
phrases. More than 60 million photos are a digital footprint, Snapchat claims to
Swarm, are location-based social net-
uploaded each day, and there are 1.6 bil- provide a solution.
works. While it isn’t “dead,” it hasn’t been
lion “likes” each day as well. That’s a lot thriving of late, either. Instead of shar- As a marketing tool, Snapchat is very low
of interaction. Last year, the service also ing a photo with your friends, you can on the totem pole. If you are trying to
rolled out video uploads. share your “location.” Foursquare helped reach out to a college-age audience, this
For lawyers, Instagram can be a terrific to usher in the “game-ification” of social is one place they are flocking to. But the
way to show a personal side yet still networks as well, awarding people points vast majority of attorneys will probably
maintain some level of professional- for checking in at a certain site, though find a better place to spend their market-
ism. I’ve seen lawyers posting pictures it recently eliminated that from its main ing resources.
of courthouses that they visit, which re- app.
As a litigation tool, however, Snapchat
minds followers that lawyers actually
As a marketing and networking tool, it’s is the mother lode. People share their
go to court. Others may post pictures of
not very effective. Yes, it’s fun to see that most intimate thoughts and photos, all
their office or of other law-related activi-
your friends are near the same place as under the guise of absolute privacy. So
ties. Creativity reigns supreme here.
you, but those types of events probably how private are these “disappearing”
For litigators, Instagram can be a gold happen far less than you might expect. photos? Computer experts have had dif-
Connecticut Lawyer September 2014 13fering opinions on how easy it is to try such as Avvo, but Yelp is more widely $19 billion.) Because the younger gener-
to recover these “snaps.” Turns out it used. Thus, rather than let the conversa- ation is increasingly using text messages
isn’t that hard, but it’s not nearly as easy tion about you or your business be dic- to communicate, sites and apps like these
as Facebook’s “Download All” feature. tated by others, it behooves an attorney are growing rapidly. People can send
Companies should work closely with any to take an active approach to his or her multiple messages to multiple people
forensic experts to determine the cost-ef- identity on the site. but in a more “private” and direct fashion
fectiveness of trying to obtain such data. than, say, a Facebook update.
How so? By responding to criticism—ei-
Often times, younger people may take
ther publicly or in a private message— For litigation, you should request data
screen shots of “snaps” so the pictures
and by encouraging others to do the from these sites in discovery. Just like e-
may not be as difficult to retrieve as you
same. It’s important to note that I’m not mail, text messages (both directly on a
may think. And litigants should certainly
suggesting “gaming” the Yelp system by device and through sites like these) are
ask for this information in discovery.
“buying” reviews. Moreover, there may be being used with increasing frequency.
Other new “disappearing” social media ethical obligations that are implicated by Other texting services that have shown
sites have sprung up as well. Sites like even requesting “reviews” from others, some staying power include Viber, Line,
Whisper, Secret, Cyber Dust, Yik Yak, regardless of compensation. But leaving Skype, GroupMe, Kik, and Facebook Mes-
Streetchat, and many more have been your profile to your most disgruntled senger. On a related note, some of the
popping up, particularly in schools, as the contacts isn’t something that most mar- dating sites, like Tinder, are also fodder
new digital “bathroom graffiti.” keting professionals would advocate. for litigators; you may be looking for a
Yelp needle in a haystack, but smartphones
WeChat and WhatsApp contain a lot of data.
What is it? It’s a review-based network
As Facebook has been losing some inter-
that allows users to be a critic on every- Technology has come a long way in a
est among teens, there has been a com-
thing from the neighborhood pizza par- short period of time. There’s still no time
parable increase in the rise of cross-plat-
lor to their local doctor or lawyer. Yelp like the present, though, for lawyers to
form messengering services. This allows
is routinely one of the most visited sites understand what is out there and to keep
people to send group text messages via
in the U.S. It is increasingly being used as up with recent developments in social
an application rather than their phone.
a networking tool. You can connect with
These applications, such as WhatsApp media.
other reviewers and share your thoughts
or WeChat, allow people to communicate
on message boards as well. An earlier version of this article originally
using non-SMS (and costly) text messag-
appeared in the March/April 2014 issue of
“Yelpers” are also using the site to review ing services. (Indeed, WhatsApp was re-
the ABA’s Law Practice magazine. CL
professionals. Yes, there are other sites cently purchased by Facebook for over
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14 Connecticut Lawyer September 2014 Visit www.ctbar.orgYou can also read
