AADC 2021 HOLIDAY JUDICIAL RECEPTIONS

AADC 2021 HolidayJudicial Receptions

Phoenix Holiday Judicial Reception

On December 9, 2021, the AADC hosted its annual Phoenix Holiday Judicial Reception (our first in-person event since the pandemic began) on the spacious, newly remodeled patio at the Westin Province in downtown Phoenix. Attendees enjoyed reconnecting with one another and members of the judiciary including Justice James Beene, Judge James Teilborg, MCSC Civil Presiding Judge Pamela Gates, Judge Katherine Cooper and Judge James Smith among others.

Tuscon Holiday Judicial Reception

The AADC and Tucson Defense Bar reunited to host their joint Tucson Holiday Judicial Reception honoring retiring Pima County Superior Court Judge Leslie Miller on December 14, 2021. The event has held downtown on the charming patio at Café al la C’Art adjacent the Tucson Museum of Art. Jenckes Closing Argument Finalists from University of Arizona law school were also honored at the event and received awards from the AADC and TDB in recognition of their accomplishments.

AADC Newsletter Committee: Amy Wilkens (Lorber, Greenfield & Polito, LLP), Brian Rubin (Thomas, Rubin & Kelley, P.C.), Eadie Rudder (Carpenter, Hazlewood, Delgado & Bolen), Jennifer Elias (Farley, Choate & Wood), Grace Lynn (Bremer, White, Brown & O'Meara), Kara Kaplan (Gordon Rees), Stephanie Baldwin (Jones, Skelton & Hochuli), and Doreen Myles (AADC Executive Director)

The Lawyer and the Ostrich

J O S E P H A . B R O P H Y , E S Q . J E N N I N G S , H A U G , K E L E H E R , M C L E O D

Judge Richard Posner once wrote,

“the ostrich’s posture is not a seemly one for a lawyer. ” To prevent lawyers from assuming that posture, lawyers have duties of inquiry/investigation in a wide variety of situations across many practice areas.

It’s a story as old as time. A lawyer is minding his own business when he is introduced to potential new client from South America who wants to invest $1 million cash for the production of a movie, with a goal to use that money to leverage an additional $5 million from lenders to be used for the marketing of the movie. All the new client needs from the lawyer is to deposit the money in the firm’s trust account. Easy billable hours, no?

Fast forward a couple years and the lawyer learns, when he is indicted under 18 USC § 1960(a) for operating an unlicensed money transmitting business (colloquially known as money laundering), that the money in the firm trust account was drug money. No this is not autobiographical. But the appellate division of the Supreme Court of New York recently upheld a three-year suspension of a lawyer on exactly those facts, the ABA in 2020 issued a formal opinion on money laundering by lawyers, and the ABA Standing Committee on Ethics and Professional Responsibility is currently considering new model rules that specifically address money laundering. For whatever reason, this is a trendy topic in legal ethics.

ER 1.2(d) prohibits a lawyer from advising or assisting a client in conduct the lawyer “knows” is criminal or fraudulent. Which begs the question: what does “know ” mean? Some states, such as New York, attribute to a lawyer any facts he “ should have known. ” In contrast, Arizona has declined to read a “ should have known” standard into ER 1.2(d). In re Tocco, 984 P.2d 539, 543 (Ariz. 1999) (“While actual knowledge can be proven by circumstantial evidence, a mere showing that the attorney reasonably should have known her conduct was in violation of the rules, without more, is insufficient. ”)

But there may be less to the difference between New York and Arizona’s approaches than meets the eye. While Arizona adheres to an “ actual knowledge” standard, a lawyer’s knowledge may be inferred from the surrounding circumstances. See Arizona ER 1.0(f). This raises the issue of a lawyer’s duty to inquire to ensure that he is not advising or assisting a client in a transaction or other non-litigation matter the lawyer “knows” is criminal or fraudulent.

As the New York lawyer discussed above learned the hard way, failure to make a reasonable inquiry is willful blindness punishable under the actual knowledge standard of the rule. The New York appellate court observed: “People usually don’t walk into an office with a million dollars in cash and ask that it be converted into another form, ” and therefore, the court said, the lawyer “ should have been on notice that this was not a legitimate transaction. ”

The State Bar of Arizona has not issued any opinions regarding the duty of inquiry under ER 1.2(d). But a 2001 opinion by the Legal Ethics Committee of the Indiana State Bar Association illustrates how, even under facially mundane circumstances, a lawyer is obligated to investigate to make sure transaction with which the lawyer is assisting is not criminal or fraudulent. A transaction need not be inherently suspicious, like the New York fact pattern, to trigger a lawyer’s duty to inquire.

The Indiana committee addressed the following facts. A lawyer was asked to create a “ new ” sole power of attorney for a prospective client on behalf of her wealthy grandfather in matters concerning his estate. According to the committee, those facts, on their face, trigger a duty of inquiry. The opinion emphasized: (1) the possibility that the granddaughter could fraudulently use the power of attorney to benefit herself rather than serve the interests of her grandfather, whom the lawyer had not consulted; (2) the possibility that the grandfather would not wish to grant sole power of attorney to his granddaughter; and (3) the possibility that the grandfather might lack the capacity to consent to such an arrangement. The committee concluded that “the fact that a proposed client in drafting a power of attorney was the agent and not a frail principal should have suggested to [the lawyer] the possibility that the client’s real objective might be fraud.

[The lawyer] then had an ethical responsibility to find out whether the proposal was above-board before performing the services. By failing to make further inquiry, [the lawyer] violated Rule 1.2. ”

Because of the duty of inquiry, the distinction between states like New York (attributing to the lawyer knowledge of facts he “ should have known”) and Arizona (requiring “ actual knowledge”) may be one without a difference in most cases. Although Arizona’s ethics opinions do not say much on this subject, ABA Formal Opinion 491 provides additional information. For you ostrich lovers out there, Judge Posner’s criticism notwithstanding, the news is not all bad. While imitating the bird’s posture will get you into trouble, the Rules of Professional Responsibility do not place any limits on being tall or running fast like an ostrich.

Speak Less, Say More

F R A N K R A M O S , E S Q . C L A R K E S I L V E R G L A T E

Technology had transformed how we communicate. We receive our information on headlines that pop up on our phones and short posts on social media. There is little time for depth or analysis, and none for digressions or meanderings. If you want to affect behavior through your words, you have to use as few as possible and ensure every word you write or speak is imbued with transcendent meaning. TED Talks show that the most effective speeches are short, direct and to the point. If you’re leading a law firm, company or non profit, your job is to share your vision, get others to buy into it and inspire them to pursue it wholeheartedly. The challenge is your audience needs to be convinced quickly or likely not at all. Meetings, PowerPoints and presentations that take too long will lose your audience and dilute your vision. Get to the point, make the point and move onto the next points.

Here are some tips to make your speaking and writing succinct and powerful:

Avoid what others have to say about your vision. It’s your vision. Don’t repeat stories or anecdotes from books you’ve read or presentations you’ve attended. Share your story, and share only the heart of the story and the lessons learned from it. No one cares what you did or what you personally learned. They only care what they can learn from it and how they can apply it to their careers and lives.

Be transparent and vulnerable. It doesn’t matter how you say something if you have nothing to say. It’s the message, not the messenger. It’s what you give away, not what you want to take from the audience. You’ve made mistakes. You’ve failed. You’ve stumbled. From these you have learned and honed your vision. Be vulnerable and share your journey, stumbles and all, to your destination. Again, keep it short and to the point and be open about the challenges that helped define and achieve your vision.

Share your story. You’re the protagonist. You faced a challenge, the outcome was in doubt, you struggled, there was a climax, you overcame and rode into the sunset, fade to black, roll the credits. Once you’ve given the flash fiction version of your story, put your audience in your shoes, and make your story theirs, and your victory theirs. They’re not there for you. They’re not in it for you. They’re in it for themselves. You want them to serve the vision? The vision must first serve them.

Use mostly verbs, some nouns, few adjectives and no adverbs. Powerful writing and speech revolves around strong verbs. Active verbs that leave a visual in their wake are the cornerstone and foundation of everything you say and share. Strong, specific nouns are second. Everything else is a distant third.

Cadence and crescendo. You want to use different words to say the same thing for emphasis and cadence and you want the words and phrases to build up to a crescendo, where the quietness of your words give way to something louder, bolder and more powerful. You’re a composer. Compose.

The way we communicate has changed. We want something powerful, impactful, direct and brief. Those of us who can communicate this way will separate ourselves from those who call themselves leaders but achieve little despite their titles.