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Holiday gifts raise ethical concerns

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Sending seasonal gift baskets or holiday cookies could be considered an ethical violation for lawyers who might want to say thanks to a colleague in the legal profession for sending a client their way.

That’s the takeaway from a strict reading of Indiana’s attorney advertising rules, which were rewritten a year ago and are now in place for their inaugural holiday season. One revision broadens the scope of a rule on the “channeling of professional work,” leaving lawyers with little practical guidance on what the line is on sending holiday tokens of appreciation to those who’ve helped their practices in the past.

But those enforcing the disciplinary rules, along with attorney ethics experts and an array of small and large law firm practitioners, say they don’t think nominal holiday gifts rise to the level of an ethical rule violation. Instead, it’s the large-scale gifts and back-room referral patterns that are the focus of the lawyer conduct rules.

“I will be surprised if any sensible attorneys change their practice of sending cards that could not be compensation or anything of value within the meaning of the rule,” said Jerry Jenkins, a partner at Baker & Daniels in Indianapolis who leads the firm’s ethics committee. “The Supreme Court surely has more important things to do than pursue holiday baskets and such.”

Changes to the Indiana attorney advertising rules in 2010 shuffled existing provisions and revised some of the writing of the professional conduct rules. For the most part, it did not change the essence of the provision, but in some places, it did broaden the scope. The court changed two sections that deal with attorney referrals in the context of advertising. Previously, Rule 7.2(b) had focused on press, radio, television or other communication mediums, but those listed areas were removed from the 2011 version. Now, it just prohibits lawyers from giving “anything of value to a person for recommending or advertising the lawyer’s services.” That’s led some to question whether the provision prohibits any referral-related holiday giving between attorneys that might have even the slightest value.

Commentary added for the first time to this rule specifically says the rule in question is designed to prohibit a lawyer from paying others for “channeling professional work.” That phrase is new and remains open for interpretation, according to the Indiana Supreme Court Disciplinary Commission executive secretary G. Michael Witte.

At the moment, Indiana doesn’t have any law on the books about that specific issue and the court hasn’t issued any guidance on what is and isn’t allowed, he said. But Witte doesn’t see the rule’s wording would lead to enforcement for those sending something that would otherwise be determined “reasonable” in most situations.

He looks to the state’s judicial code of conduct, which in Rule 3.13 allows for reasonable gifts that are “commensurate with the occasion.”

“That refers to birthdays and holidays, and while we don’t have anything that refines it more, that provision gives us a reasonable point of reference here,” Witte said. “We know there are certain things that occur during the calendar in the year when lawyers give and receive gifts, and the holidays are one of them where this would be termed appropriate.”

Witte hesitated to define what might cross the line of being “reasonable,” saying that he doesn’t want to define it and – if the case arose to test that line – the Supreme Court would have to offer that interpretation.

Law firms contacted by IL either declined to comment on this issue or offered statements that they comply with the rule as it’s written, without saying whether they specifically read the rule to preclude any small item such as holiday gift cards or baskets.
 

limontes Limontes

Alex Limontes, of counsel at Mitchell Hurst Dick & McNelis and incoming chair of the Indianapolis Bar Association’s Solo & Small Firm Committee, reads the rule to be more focused on the continued practice of funneling work to attorneys. The “for” part of the provision is the most important, he said.

“With regards to holiday gifts, I think that you begin to tow that line between ethical and unethical conduct if you give a large gift or significant monetary gift,” he said. “If you send the gift with a card that states something like, ‘Enjoy the gift. Thank you for sending me all of those clients,’ then that could potentially be construed as giving something of value for recommending or advertising.”

Limontes would advise attorneys to try and keep gifts simple and inexpensive such as cookies, candy or gift baskets. Multiple gifts could all be the same so that no one appears to be getting special treatment, and lawyers should avoid putting themselves in positions where someone could question the reason for the gift.

On the referral issue, he and others say that written non-exclusive fee agreements as outlined in Professional Conduct Rule 1.5 should be used between attorneys if any clients are being referred.

At Barnes & Thornburg in Indianapolis, law firm management relies on the counsel of the state’s former attorney ethics chief, Don Lundberg. While he doesn’t think an item like a gift basket falls within the Rule 7.2(b) prohibition, Lundberg does see how a literal reading of the rule can be taken to encompass those items and might cause some attorneys to wonder if this might be a practical concern.referral

“I suppose an after-the-fact, tangible expression of gratitude could be substantial enough and given in such a way that it would reasonably be viewed as a promise to make a similar gift for future referrals,” he said. “In that event, it could readily be interpreted as a quid pro quo rather than a pure gratuity.”

To avoid any potential issues, Lundberg said lawyers would be well-advised to be transparent about whether something is a gift of appreciation or something more. For example, a note could be written and attached to a box of chocolates or nuts to say, “I hope you’ll accept this as an expression of my appreciation for the business you have referred to me over the past year.”

He cautioned, “If, in reality, it is a disguised quid pro quo for referral of a case and the ‘gift’ is of substantial value and tied to the result in a particular case, no amount of window dressing will keep it from being what it really is.” 

Jenkins agreed, saying that although there’s little guidance about what the rule means and no disciplinary decisions interpreting this provision, lawyers should be conservative in how they handle any gift – even during the holiday season.

“As for Christmas baskets and other nominal gifts, the careful attorney will take pains to emphasize that it is a holiday gesture to a business acquaintance and not compensation for a referral of business,” he said.•

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  1. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

  2. This guy sounds like the classic molester/manipulator.

  3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

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