A. After the ball drops on another year, we often spend the next twelve months dropping balls in all aspects of lives. Even if you finished your list of resolutions, in a few weeks, that list would be buried beneath a pile of paperwork, as the overwhelming demands of practice, multiple deadlines and an endless stream of phone calls monopolize your time.

In a profession that struggles with a higher incidence of depression and anxiety than the population at large, we tell ourselves that “the client comes first” and let everything else suffer.

Contrary to the time-honored adage, clients do not come first. You do.

If you truly want to serve your clients well, scrap the resolutions and start making some firm decisions. You cannot attend to their needs at the expense of everything else. Sleep deprivation and a steady diet of caffeine and anti-depressants won’t make you a better lawyer. The unhealthy, one-dimensional lifestyle that many of us maintain comes with serious consequences and may ultimately harm the very clients we are sworn to help.

Achieving balance takes time — time which cannot be measured in billable hours.

Using 2020 vision, imagine a year in which your practice is but one aspect of a healthy life that includes a proper diet, exercise, family and recreation. If you are overwhelmed at the office, honestly assess your need for support staff, better technology and case management systems, and a more selective approach to incoming business.

As lawyers, we are accustomed to rolling up our sleeves to put in extra hours – maybe even “all-nighters” – to get the job done. That may be necessary on occasion. But it should never become a way of life.

This applies to all of us irrespective of the nature of our practice or the setting in which we work. But achieving balance is particularly challenging for sole practitioners who are accustomed to doing everything themselves.

If you aren’t getting enough sleep, fail to exercise, don’t eat right or spend enough time with family, you won’t be in a position to help anyone after long. Your clients may appreciate your hard work and dedication. But they’ll find plenty of other lawyers to take over once you’re gone.

Your family will miss you, though. Perhaps they miss you already.

Don’t drop the ball.

A. Before fielding their questions, ask yourself whether silence is “golden” or “prejudicial.”

Warned against trying cases in the press, many lawyers limit their advocacy to the courtroom. Lest we taint the process, attorneys must refrain from “extrajudicial statements” in the media that they know or reasonably should know will have a “substantial likelihood of materially prejudicing an adjudicative proceeding.”

That hasn’t stopped prosecutors from orchestrating press conferences, issuing press releases and choreographing perp walks. Once they do, your silence isn’t always golden. Beyond the potential to contaminate the jury pool, one-sided news coverage may tarnish your client’s reputation and cause irreparable harm regardless of the ultimate outcome in court. The words “not guilty” won’t magically restore the reputation of clients where years of disparaging stories preceded their exoneration. Indeed, after his acquittal in a high-profile case, one defendant famously asked, “Which office do I go to get my reputation back?”

Your law office isn’t the answer. But, as advocates, we must often play a key role in the “court of public opinion.” Rather than ignore disparaging press accounts, the rules of ethics let us balance the narrative. If we reasonably believe that our comments may be “required to protect a client from the substantial undue prejudicial effect of recent publicity” originating from other sources, we may comment as “necessary to mitigate the recent adverse publicity.”

Taken literally, this narrow exception would muzzle lawyers until after headlines have already impaired the right to a fair trial. But in practice, those who choose their words wisely may mitigate reputational harm while promoting the administration of justice:

➤ Get Client Approval

Before discussing your case with reporters, you must review the advantages and disadvantages with your client. Without your client’s informed consent, you must not reveal any information relating to the representation, regardless of whether it is privileged.

➤ Speak for the Client

Absent rare circumstances, do not let your client speak with the press. Lawyers who have done so often live to regret it, as client comments may be used against them at trial. By speaking on your client’s behalf, you can avoid the pitfalls that may arise from errant or ill-considered statements.

➤ Keep It Simple

When speaking for your client, be careful with what you reveal about the evidence, your strategy and your response to specific allegations. Unlike a court of law, details aren’t as critical in the court of public opinion where short “sound bites” work best. By limiting your comments to what you want the press to print, you will gain more control over the story itself and minimize the risk of confusion. Considering the fact that your adversary, the judge and potential jurors may also read your comments, less is more when it comes to press accounts.

➤ Respect the Reporter’s Role

Reporters aren’t our adversaries. Often, they are kindred spirits. Just as you work to hold prosecutors and other public officials accountable, enterprising journalists may expose abuses of power and enhance government transparency. In cases demanding such scrutiny, the fourth estate may be a powerful ally.

➤ Develop Reporter Rapport

To get a good report, you need good rapport with the reporter.

Some lawyers have tense relationships with the press. Responding to questions with a sterile “no comment,” their reluctance to talk may actually harm client reputations.

The alternative does not require that you reveal case-specific information or answer all questions directly. General comments about the presumption of innocence, your client’s desire to present his case in court, or the need to consider all the evidence may help to counter a rush to judgment. At the very least, they may remind the public that there are two sides to every story.

Even in cases where you cannot comment at all, you may still offer “off the record” guidance to a reporter to clarify issues, focus on more favorable facts and provide insight on your client’s position. So long as you exercise care to establish the parameters of your communication, speaking “on background” and “without attribution” may foster a productive relationship as press coverage continues.

➤ Don’t Be Self-Serving

You may not be in court, but you are still representing a client whose interests come before your own. When speaking to the press, leave your ego or desire for self-promotion out of it. If you do your job well, your dedication to your client’s cause will speak volumes for your professionalism and qualities as counsel.

As lawyers, we are more accustomed to protecting our clients within a courtroom than we are outside of it. But if we act with proper discretion, we may defend our clients in the court of public opinion without tainting proceedings in a court of law.

A. Even at war with the other side, there are ethical rules of engagement.

Before you make any use of these records, you must notify opposing counsel on the nature and extent of information received. The Rules of Professional Conduct require that lawyers promptly notify the sender of any data which they know or have reason to believe was “inadvertently sent.”

Although many of these texts may fall within the scope of discovery, it would appear that some privileged material was mistakenly included. It may be tempting to capitalize on your adversary’s error, but your duty to your client does not entitle you to disregard entirely the rights of others.

In law as in life, errors do occur. With the hasty click of a mouse, emails are occasionally misaddressed, privileged messages may be inadvertently produced, or documents may be accidentally included with information that was intentionally transmitted. If you think you received more than your opponent intended to send, you are ethically obliged to inform opposing counsel so that protective measures may be taken.

To preserve the rights of others, this notice requirement gives senders the opportunity to correct these mistakes. But it does not require that you bow to these efforts, destroy what you received or refrain from using the information. If a motion is filed, the court will ultimately decide whether privileges apply, whether privileges were waived by inadvertent production, or whether you must disgorge some or all of the material received. Naturally, if the sender neglects the privilege and makes no effort to limit your use of this information, later objections are less likely to prevail.

Depending on the circumstances surrounding an inadvertent production, you may volunteer to return documents or to delete electronically stored information unread. But without a court order to the contrary, your decision rests with your exercise of “professional judgment.” Rule 4.4 comment [3].

When there are no rules, we might apply some variation of the Golden Rule to such dilemmas: “Produce unto others what you would have them produce unto you.”

A. Taking a well-deserved respite from law practice is a very good idea. The time away will let you decompress, avoid job burnout, and reconnect with the family that you may have neglected during that hectic divorce trial. And, if you don’t want to trigger a divorce of your own, you shouldn’t plan to take your work with you.

Yet, even if you flee the jurisdiction, a lawyer in paradise remains subject to the Rules of Professional Conduct. While we aren’t required to be on call 24/7/365, we are required to “promptly comply with reasonable requests for information.” Most clients can live without us for a couple of weeks, but unless we want to come home to a grievance, a little bit of planning can go a long way to helping your clients relax during your time away.

➤ Set Boundaries — let your clients know when you will be on vacation with limited or unreliable access to email and other means of communication. If they don’t already have your cell phone number, this would not be a good time to give it to them unless there really is an urgent matter that you must address during your time away.

➤ Designate an Attorney to Contact in Your Absence — like medical doctors, we can’t always control when a crisis may require more immediate attention. If you practice in a firm with other lawyers, it will be relatively easy to prepare them on any pressing matters and let them determine the need for your personal attention. If you’re a sole practitioner, a well-trained office assistant may be able to screen the calls to do the same.

➤ Record Vacation Voice Mail Greetings — before you leave, record a voice mail to inform clients that you are out of the office and on vacation. The greeting should let clients know when you will be returning to the office and reassure them that you will return their call promptly thereafter. Your message should leave instructions on whom the client should contact in case of a true emergency. This will help clients with a time line for your return, while setting appropriate boundaries and expectations.

➤ Set Your Out-of-Office Email Message — like your voice mail, those who email you should receive an automatic reply with the same information and instructions. Many lawyers state that they are “out of the office,” but refrain from stating that they will be “on vacation” because it somehow detracts from their aura of dedication to client service. This is nonsense. Let your clients, opposing counsel and others know that you are human and need your time away.

In this day and age, it’s easy to take the office with you wherever you go. That may make it easy to respond to client emergencies, but it makes it harder to recharge your batteries and resist the temptation to check your cell phone and email throughout your trip.

Do I practice what I preach? In younger years, I always took my work with me. Today, I enjoy my time away with minimal interruption. However, when I have a suitable connection, I do check my email twice a day to ensure that I can respond to clients who, for whatever reason, simply cannot wait for my return. Given the nature of my practice, I often encounter lawyers in crisis for whom two weeks away is an eternity. Limiting my calls, I can usually take a moment or two to offer some reassurance that let’s us both relax until my return.

One could say that legal ethics never takes a holiday. But to serve our clients well in the long run, lawyers must do so the right way.