Bar News - November 18, 2015
Practitioner Profile: Mitch Simon: Ethics Guidepost for Lawyers
By: Carol Robidoux
Mitchell Simon has been a member of the NH Bar Association Ethics Committee for more than 30 years.
Over the course of his career as both attorney and educator, Mitchell Simon has emerged as a national expert in the field of legal ethics, a fateful path that presented itself serendipitously, during his first summer of law school.
“In many ways, it almost felt like it was preordained,” says Simon, a professor emeritus at the University of New Hampshire School of Law and member of the attorney conduct and liability practice group for Devine, Millimet and Branch in Manchester.
“I was working at Legal Services in Boston, preparing for my first case when my supervising attorney had a ‘file to disqualify’ filed against him. It was a major case, and he told me that I’d better learn the law, so I went out and spent most of the summer figuring out the ethical codes involved. At that time in law school, there was no mandatory course in ethics being taught. I got so interested in the law around it, and the complicated set of rules that govern so much about how lawyers behave and practice, that I immersed myself in it,” says Simon.
By the time he moved to New Hampshire in the 1970s to work for New Hampshire Legal Services, Simon had a depth of knowledge in legal ethics that earned him the position of resident expert and go-to consultant.
He continues to practice law and educate aspiring attorneys on the evolving particulars and nuances of professional ethics in law, particularly with changes in technology.
“Technology has created a tremendous new set of issues,” he says. “The laws governing business tend to lag, so you have to figure out what to do with it under the current rules and then figure out how to change the rules.”
“For instance, email has made an issue of misdirected documents. Hitting ‘reply’ can really change things if you don’t understand the way the technology works. The rules are beginning to reflect a requirement that lawyers stay current in technology,” says Simon.
Because of his experience, including more than 30 years on the NH Bar Association Ethics Committee, he has carved out a niche defending attorneys accused of wrongdoing.
“In many cases, someone is challenging a lawyer – could be that they lied to someone, or to the court, or in discovery they didn’t turn over certain information. Those cases are governed by a complicated procedure. Most of my work has been in that realm, and most of my clients have been good folks, as we find many of those cases get dismissed based on a misunderstanding or false accusations. There are, of course, cases where my clients have made mistakes, or not been careful in office management practices,” says Simon.
Included in his area of expertise are discipline cases – most often a lawyer falls below the standard of conduct that affects their ability to be licensed – and bar admission candidates, who are accused of past wrongdoing or legal issues, such as DUI charges, or have credit-card debt issues.
“I started to get interested in this area as a scholar, and have written four or five articles on the use of remorse and how the bar admission processes should and shouldn’t work. I’ve had the opportunity to represent young people trying to navigate that process,” says Simon. “A number of those I represent remind me of my own kids, young people who’ve made some mistakes in their youth. That’s what makes bar admissions so interesting, because you are looking at someone’s past and trying to predict future behavior, like what do two DWIs as a 21-year-old mean? Or racking up credit card debt in college? Would that predict the danger of someone being tempted to steal client money? I find this to be the most interesting part of my work.”
Currently he teaches three ethics courses two times a week at UNH Law.
“We’re covering an amazing amount of turf, as the law has grown. My goal is to get students to understand the rules, and even more fundamentally, how the rules impact a legal practice, including the risk of certain choices – the business of law, and the pressures you’re going to feel as a first-year associate,” says Simon.
These pressures on a newly-minted attorney, Simon explains, hit after passing the bar and achieving the job and the income goals set before law school. It becomes time to understand how to handle the legal ethics of the job, not only in the abstract sense, but in the tangible temptations such responsibility legally requires.
“Things as basic as billing requirements, or potentially explosive as getting documents that are smoking guns in your hands. Until it happens, you have no sense that some night you will find yourself in your office alone, and this document falls into your hands that kills the case. You know you have to turn it over and not destroy it, but the temptation to do that, when you’re sitting there alone, can be quite real,” says Simon.
In the context of ethical repercussions, Simon mentioned a teachable moment – the saga of former New Republic journalist Stephen Glass, who was fired after it came to light that he had fabricated quotes and information. He switched gears and earned a law degree from George Washington University, but has consistently been unable to pass the bar in California or New York, unable to repair the damage done to his reputation, says Simon.
“A California court ruled he hadn’t rehabilitated himself sufficiently to practice law as an attorney,” says Simon. “In every textbook there are cases you teach from – every state has someone who made profound moral, ethical mistakes,” says Simon. “In my experience, I’ve been lucky to see many great people who’ve made mistakes, and who are genuinely sorry and who’ve worked hard to make things right.”
Q&A with Mitch Simon
Bar News: When it comes to the legal standards governing attorneys, are there some rules you believe should be changed?
Mitch Simon: New Hampshire, through the hard work of the NH Bar Association Ethics Committee, the Rules Advisory Committee, and the Supreme Court, has done a good job of keeping its rules of professional conduct current with the Model Rules of the American Bar Association. However, I think the ABA rules may be too restrictive to meet the unmet needs for legal services and to address the pro se litigant problem. In areas like advertising, multi-state practice, law firm structures, and use of lay professionals, we will likely over the next 10 years need to join other states in taking a more creative approach to the delivery of legal services. Only by doing this can we provide adequate access to the justice system and restore the public’s faith in the system.
BN: Do the current laws governing ethics do a good job of regulating attorney behavior? What is the effect of the growing body of rules on the practice of law generally, and the role of lawyers in the community/society?
MS: Writing rules that properly govern the varied conduct and practices of lawyers is a very difficult task. Such rules must necessarily be vague in some respects. In light of this, I think the rules overall do a decent job of setting standards for behavior. The real key to a fair and effective disciplinary system is to look at how the rules are enforced. It is obviously critical that the public be protected from lawyer malfeasance. But lawyers also need to know that those implementing the rules will exercise sound prosecutorial discretion and interpret the rules with an eye towards both the reality of practice and the necessary ambiguity in the rules. Although we certainly don’t always agree on how this should be done in specific cases, I have been impressed with the thoughtfulness and consideration shown to me and my clients by the NH Attorney Discipline Office and the disciplinary prosecutors.
BN. What advice do you have for attorneys trying to figure out how versed they need to be when it comes to technology?
MS: Technology is becoming a dominant issue in legal ethics. Cases on preserving confidentiality when using newer technologies like text messaging, responding to negative comments on websites, and e-discovery are becoming staples of legal ethics cases. It is often those of us with significant practice experience and confidence in our work who are most vulnerable here. I only half-facetiously have said that most lawyers over 50 should co-counsel with a younger associate or at least hire their kids to guide them in cases where technology is a significant factor.
BN: On a more personal note, what is it like being a lawyer whose clients are also lawyers?
MS: I feel very fortunate to have had a great group of clients. A significant number were wrongfully accused of misconduct. I have been pleased to be able to help them navigate the disciplinary system to get the cases resolved quickly. I have also represented some very good lawyers who made errors in judgment or other serious mistakes. It is gratifying to help them improve their practice and to try to keep the disciplinary sanctions to an acceptable level. The conventional wisdom that lawyers are difficult clients has not been true in my experience. I enjoy having a client who can meaningfully participate in the case, but also respects the judgment and experience I bring to the matter.
Ethics question? The NH Bar Association Ethics Committee responds to attorneys’ ethics questions. Contact Robin E. Knippers, the committee’s staff liaison. Your question will then be submitted to the committee for a response.