CBA Record September 2018

LEGAL ETHICS

John Levin’s Ethics columns, which are published in each CBA Record, are now in-

dexed and available online. For more, go to http://johnlevin.info/ legalethics/. ETHICS QUESTIONS? The CBA’s Professional Responsibility Commit- tee can help. Submit hypothetical questions to Loretta Wells, CBA Government Affairs Direc- tor, by fax 312/554-2054 or e-mail lwells@ chicagobar.org. By providing us your email address, you will: –Receive the CBA e-Bulletin every Thursday containing a list of the following week’s com- mitteemeetings and speakers noting freeMCLE credit, upcoming seminars, networking events and important news about the Association. –Receive timely notices of your committee meetings, topics and speakers. –Cut down on the amount of mail and faxes the CBA sends. To notify us of your email address, call 312/554- 2135 or send an email to info@chicagobar.org including your name, phone, email address and CBA member number. Please note that the CBA does not provide or sell member email addresses to outside entities nor will we bombard youwith unnecessary emails. Thank you! someone else was able to identify you as a lawyer, and someone else learned that the comment was about a client (all of this very possible with current technology), and then posted all that information on social media. You would clearly stumble into a public violation of the Rules for which you could legitimately be sanctioned. There is now a real chance that our private behavior becomes professional conduct and can be judged accordingly. We can add this to our lists of concerns. Wanted: CBA Member Email Addresses

BY JOHN LEVIN

Lawyers Acting Badly T wenty-first century communication technology has created a lot of wor- ries for lawyers. We must be very careful of what we post on social media: no client confidences (including, in some cases, who our clients are); no mention of what goes on in the courtroom; and no mention of particular judges.We have to be careful with our websites: do not accidently practice law in a state in which we are not licensed, do not inadvertently create an attorney-client relationship, do not give advice without getting all the facts. In fact, sometime it is better to say nothing at all. But what about walking down the street just living your life? Or going to a restau- rant? Your private life should be safe–right? Not if you have been following the recent incident involving New York lawyer Aaron Schlossberg. As reported in the national media, Schlossberg “berat[ed] an employee at [a] fast-casual eatery…in midtownManhattan because the staff was speaking Spanish.” He also “threatened to call immigration authorities on the employees, alleging… that they were not legal residents of the country.” Clearly rude and boorish behav- ior, which is best forgotten–except for the fact that someone recorded it on their smartphone and posted it online–where it went viral. The initial result was a lot of very nega- tive publicity, which appears to have had an adverse effect on Schlossberg’s reputa- tion. “[T]he video kicked off a mad dash in New York as reporters from the city’s

tabloid newspapers…rushed to confront him about his statements.” Another result was that two elected officials, Adriano Espaillat and Ruben Diaz Jr., filed a grievance against Schlossberg with the discipline committee of the New York State Unified Court System. The grievance apparently does not specify what provisions of New York’s Rules of Profes- sional Conduct were allegedly violated, and most online opinion is that Schlossberg’s behavior (whatever you may think of it) does not violate the Rules. But my intention is not to analyze Schlossberg’s behavior under New York law. My intention is to add another item to the list of things lawyers have to worry about. Schlossberg went on his rant as an anonymous individual–except that some- one made a video recording. Apparently an activist in New York saw the video and was able to identify Schlossberg and determine that he was a lawyer. The activist was able to post the video with information about Schlossberg, and the media and public took it from there. The next step was a formal professional grievance. All of us have done things we wish we hadn’t. Almost invariably we can shrug them off or apologize, and they drift off into the unrecorded past. However, the past is no longer necessarily unrecorded. Public and private recording devices are everywhere. In my opinion, most rude and obnox- ious behavior not connected with the practice of law should not rise to the level of professional misconduct–though it may be embarrassing. However, what if you were in a restaurant and made a negative comment about a client’s case–just an off- hand comment to a friend. Now assume someone recorded it and posted it, and

John Levin is the retired Assis- tant General Counsel of GATX Corporation and a member of the CBARecord Editorial Board.

46 SEPTEMBER 2018