Category Archives: Lawyer Ethics and Professionalism

Florida Bar Board of Governors reverses advertising opinion and finds that solicitation rules apply to targeted social media

Hello everyone and welcome to this Ethics Alert, which will discuss the recent Florida Bar Board of Governors (BOG)  reversal of a Florida Bar advertising committee opinion that found that targeted social media advertisements were not subject to the solicitation rules.

The BOG voted at its January 2020 meeting to reverse an opinion by the Bar’s Standing Committee on Advertising related to a lawyer who wanted to use information that prospective class action members provided to social media platforms and target specific advertisements to their social media feeds.  The BOG’s Board Review Committee had previously voted 9-0 to recommend that the BOG reverse the Standing Committee on Advertising and find that these types of advertisements are direct solicitations and are required to comply with the direct contact/solicitation rules.

The inquiring lawyer did not indicate the specific legal matter that would be pursued; however, the lawyer gave, as an example, an advertisement for an employment class action that would be targeted to users who had told social media providers that they currently or previously worked for the potential defendant company.

The Bar advertising committee’s opinion found that this type of advertisement was subject to the direct contact/solicitation rule; however, it must comply with the general advertising rules.  The Florida Bar staff and professional ethics committee had also previously issued opinions stating that a lawyer posting information in an online chat room or sending text messages to telephones are required to comply with the direct contact/solicitation rules.

Bottom line:  As a result of the BOG decision (and unless it is reversed), lawyers who wish to use such targeted social media advertisements will be required to comply with the strict requirements of Florida Bar Rule 4-7.18(b) regarding direct contact with prospective clients.  Lawyers should also keep in mind that ethics and advertising opinions (and a BOG reversal of an opinion) are not binding and for guidance only; however, lawyers may be still subject to investigation and potential discipline if the interpretation of the rule is upheld.

Be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Please note:  My office has moved and the new office address is 2999 Alt. 19, Palm Harbor, FL 34683.  All other contact information remains the same.

Joseph Corsmeier

about.me/corsmeierethicsblogs

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Filed under Attorney Ethics, Florida 2013 comprehensive lawyer advertising rules, Florida Bar, Florida Bar Rule 4-7.18, Florida Lawyer advertising rules, Florida Lawyer Ethics and Professionalism, Florida lawyer solicitation social media class action Rule 4-7.18, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer advertising and solicitation, Lawyer advertising rules, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer social media ethics, Lawyer solicitation class action social media, Lawyer solicitation social media, Uncategorized

Florida Bar Ethics Committee votes to publish proposed opinion providing guidance in responding to negative online reviews

Hello everyone and welcome to this Ethics Alert, which will discuss the recent vote by the Florida Bar’s Professional Ethics Committee (PEC) to publish a proposed ethics advisory opinion providing guidance to lawyers in responding to negative online reviews and complaint for comment.  Proposed Ethics Advisory Opinion 20-1 is here: https://www.floridabar.org/the-florida-bar-news/committee-adopts-ethics-opinion-regarding-online-reviews/

The PEC voted at its February 7, 2020 meeting to publish formal Ethics Advisory Opinion 20-1, which provides guidance to lawyers in responding to negative online reviews for comment by Florida Bar members.

The Florida Bar ethics staff previously issued Florida Bar Staff Opinion 38049 in 2018 in response to a lawyer’s inquiry.  The BOG approved the staff opinion on June 15, 2018; however, since the opinion was a reply to a single lawyer, it was not published.  I discussed  Florida Bar Staff Opinion 38049 provided a link to that opinion here: https://jcorsmeier.wordpress.com/2018/08/01/florida-bar-professional-ethics-committee-approves-staff-opinion-addressing-lawyer-responses-to-negative-online-reviews/

That staff opinion was minimally revised by the PEC and will be published online and in print in The Florida News for Bar member comments. The proposed formal advisory opinion concludes:

“Therefore, if the inquirer chooses to respond to the negative online review and the inquirer does not obtain the former client’s informed consent to reveal confidential information, the inquirer must not reveal confidential information regarding the representation, but must only respond in a general way, such as that the inquirer disagrees with the client’s statements. The inquirer should not disclose that the court entered an order allowing the inquirer to withdraw because that is information relating to the client’s representation and the client did not give informed consent for the inquirer to disclose.”

The proposed advisory opinion states that Florida Bar Rule 4-1.6(c) provides 6 exceptions permitting or mandating that a lawyer reveal confidential client information; however, none of the exceptions addresses online reviews.  The proposed opinion also refers to the comment to Florida Bar Rule 4-1.6, which states:

“A fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation….(t)he confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.”

The proposed opinion states that the language in Texas Ethics Opinion 622 “would be an acceptable response” to negative online reviews:

“A lawyer’s duty to keep client confidences has few exceptions and in an abundance of caution I do not feel at liberty to respond in a point by point fashion in this forum. Suffice it to say that I do not believe that the post presents a fair and accurate picture of the events.”  “The (lawyer) also may state that the (lawyer) disagrees with the facts stated in the review.”

According to the Bar’s Notice, the PEC will consider any comments received at their meeting on Friday, June 19, 2020 in Orlando.

“Comments must contain the proposed advisory opinion number and clearly state the issues for the committee to consider. A written argument may be included explaining why the Florida Bar member believes the committee’s opinion is either correct or incorrect and may contain citations to relevant authorities. Comments should be submitted to Elizabeth Clark Tarbert, Ethics Counsel, The Florida Bar, 651 E. Jefferson Street, Tallahassee 32399-2300, and must be postmarked no later than March 31, 2020.”

Bottom line:  Lawyers must be aware that negative online reviews do not fall within any of the exceptions which permit or require revealing confidential client information and, absent client informed consent, lawyers are not permitted to reveal confidential information in responding to the negative review.  In our digital and social media age, perhaps a change in the Bar Rule permitting such responses would be appropriate.

I will keep you advised and be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier

about.me/corsmeierethicsblogs

 

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Filed under Attorney Ethics, Attorney/client confidentiality, Attorney/client privilege and confidentiality, Confidences and negative online client review, Confidentiality, Florida Bar, Florida Bar ethics opinion responding to negative online review, Florida Bar Rules, Florida Lawyer Ethics and Professionalism, Florida proposed ethics opinion 20-1- response to negative online reviews, Florida Supreme Court, joe corsmeier, Joseph Corsmeier, lawyer confidentiality, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer ethics opinions, Lawyer ethics responding to negative online review complaint confidentiality, Uncategorized

Proposed North Carolina Bar ethics opinion states that lawyers may only make “restrained” responses to negative online reviews

Hello everyone and welcome to this Ethics Alert which will discuss recent proposed North Carolina Bar 2020 Formal Ethics Opinion 1, which states that lawyers are prohibited from revealing confidential information in response to a negative online post; however, the lawyer can make a “proportional and restrained” response.  Proposed NC Bar 2020 Formal Ethics Opinion 1 is here:   https://www.ncbar.gov/for-lawyers/ethics/proposed-opinions/

At its meeting in January 2020, the North Carolina State Bar Council adopted an ethics opinion stating that lawyers may post “a proportional and restrained” response to negative online reviews by former clients, but are prohibited from disclosing confidential information.  North Carolina lawyers have until March 30, 2020 to comment on the proposed ethics opinion.

The proposed ethics opinion responds to an inquiry by a North Carolina lawyer who believed that some online comments by a former client were false. The lawyer believed he could rebut the allegations using confidential information.  The proposed ethics opinions states that lawyers are prohibited from revealing confidential information without client consent, or unless an exception applies.

The ethics opinion discusses the exception to the confidentiality rule that permit a lawyer to reveal confidential information to the extent the lawyer reasonably thinks is necessary to defend a criminal charge or civil claim based on the client’s conduct, to establish a claim or defense in a controversy between the lawyer and client, or to respond to allegations in any proceeding involving the lawyer’s representation of the client.

The opinion discusses what it calls the “self-defense” exception, which permits a lawyer to reveal confidential information to defend him or herself applies to legal claims and disciplinary charges arising in a civil, criminal, disciplinary or other proceeding and states that “(a) negative online review does not fall within these categories and, therefore, does not trigger the self-defense exception.”

Florida, Pennsylvania, Texas, and New York Ethics Opinions have made similar conclusions.  My August 2018 blog on the Florida Bar Board of Governor’s approval of Florida Bar Staff Opinion 38049, which states that a lawyer may post only a limited response to a negative online review that the lawyer said falsely accused her of theft and may not reveal attorney/client confidences is here:  https://jcorsmeier.wordpress.com/2018/08/01/florida-bar-professional-ethics-committee-approves-staff-opinion-addressing-lawyer-responses-to-negative-online-reviews/.

Bottom line:  This proposed ethics opinion is consistent with other ethics opinions which have examined this issue, including Florida. Unless the exceptions to the rule are revised in the lawyer’s jurisdiction, lawyers will continue to be prohibited from providing confidential information in rebutting allegations in online reviews by clients or former clients.

Be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2999 Alt. 19, Suite A

Palm Harbor, Florida 34683

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

Joseph Corsmeier

about.me/corsmeierethicsblogs

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Filed under Attorney Ethics, Attorney/client confidentiality, Attorney/client privilege and confidentiality, Confidences and negative online client review, Confidentiality, Florida Bar ethics opinion responding to negative online review, joe corsmeier, Joseph Corsmeier, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer ethics responding to negative online review complaint confidentiality, Uncategorized

Ohio lawyer held in contempt and ordered to promise not to engage in disruptive conduct 25 times in “legible” handwriting

Hello everyone and welcome to this Ethics Alert which will discuss the recent contempt order by an Ohio judge for a lawyer’s disruptive conduct which fined the lawyer $500.00 and required him to promise 25 times in “legible” handwriting not to engage in conduct “that is prejudicial to the administration of justice” or conduct “intended to disrupt a tribunal or engage in undignified or discourteous conduct that is degrading to a tribunal.”

According to media reports, the lawyer was held in contempt by the Ohio judge for leaving the defense table in a criminal case during jury instructions because he objected to the judge’s refusal to instruct jurors on Ohio’s self-defense laws and also for acting unprofessionally several times during the trial.

The contempt order required the lawyer to write in legible handwriting:  “I will not engage in conduct that is prejudicial to the administration of justice or in any other conduct that adversely reflects on my fitness to practice law” and “I shall not engage in conduct intended to disrupt a tribunal or engage in undignified or discourteous conduct that is degrading to a tribunal.

The lawyer was held in contempt on the last day of a criminal trial in which his client, a former police officer, was accused of attacking his wife. The lawyer argued that the client had acted in self-defense and left the defense table during jury instructions because he objected to the judge’s refusal to instruct jurors on Ohio’s self-defense laws.

According to the reports, the judge stated that the lawyer had “thrown a tantrum” and acted unprofessionally several times during the trial.  The lawyer is quoted as stating: “I was totally wrong in how I protested. I don’t think I was wrong in what I was fighting for.”  He also said that he had expected a jail sentence.

Bottom line:  This lawyer drew significant media attention for his disruptive conduct and for the judge’s unusual sanction.  Trial lawyers must always be aware that a lawyer is prohibited from engaging in disruptive conduct in court, even if the lawyer believes that the judge is wrong and the lawyer’s cause is right.

Be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2999 Alt. 19, Suite A

Palm Harbor, Florida 34683

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

Joseph Corsmeier

about.me/corsmeierethicsblogs

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Filed under Attorney Ethics, joe corsmeier, Joseph Corsmeier, Lawyer cumulative misconduct disruptive and obnoxiousl behavior, Lawyer disrupting tribunal, Lawyer disruptive conduct, Lawyer disruptive litigation conduct, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer Professionalism, Lawyer sanctions, Lawyer sanctions promising not to disrupt in writing, Uncategorized

Florida Bar’s Board of Governors approves proposed Bar rule amendment to pay inventory attorneys

Hello everyone and welcome to this Ethics Alert which will discuss recent Florida Bar Board of Governors (BOG) approval of proposed amendments to Florida Bar Rule 1-3.8, Right to Inventory, which would authorize payments to designated inventory attorneys to assist and wind up law practices of lawyers who die, disappear, or are otherwise unable to practice law.  The inventory attorney is also permitted to take over the representation of the previous lawyer’s clients if those clients consent.

The BOG voted to support the BOG Disciplinary Procedure Committee’s proposal at its December 6, 2019 meeting in Orlando.  The proposed rule revision has been under consideration since 2017 and had a first reading at the BOG’s December 2018 meeting; however, it was deferred for further review.

Florida Bar Rule 1-3.8 currently requires Florida Bar members to designate an inventory attorney to wind down the practices of lawyers who die, disappear, or are otherwise unable to practice law.  According to a Bar staff report, the Bar opened an average of 41.4 inventory cases each year during the past five years and each of the Bar’s five branch offices spend approximately 120 hours per year searching for inventory attorneys.

Under the proposed Bar rule revisions, an inventory lawyer who pursues payment for work performed would be required to submit an application detailing the work performed along with other information and request the payment.  The Executive Director of the Florida Bar would set the amount of payment with the approval of the BOG and the Bar would administer the payments.  The initial cost of the payments to inventory attorneys was estimated to be $100,000.00; however, the costs are expected to rise.

Proposed Rule 1-3.8(e) states:

(e) Payment of Inventory Lawyer. The Florida Bar may pay a fee set by the bar’s executive director as approved by the board of governors and within the bar’s annual budget for that year to a lawyer who agrees to conduct an inventory under this rule. Payment by The Florida Bar to an inventory lawyer will be made only with prior approval by the bar, on an application approved by the bar, and under parameters set by the bar.

The proposed Rule 1-3.8 amendments will be sent to the Florida Supreme Court for final review and potential implementation.

Bottom line:  This Bar Rule amendment is designed to address issues related to inventory attorneys and pay them for their work, presumably to encourage lawyers to become inventory attorneys.  I will follow this proposed Bar Rule amendment and keep you advised.

Be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2999 Alt. 19, Suite A

Palm Harbor, Florida 34683

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

Joseph Corsmeier

about.me/corsmeierethicsblogs

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Filed under Florida Bar, Florida Bar Rule 1-3.8, Florida Bar Rule 1-3.8 inventory attorney, Florida Bar rule revision to pay inventory attorneys, Florida Bar Rules, Florida Supreme Court, Inventory attorneys, joe corsmeier, Joseph Corsmeier, Lawyer ethics, Lawyer Ethics and Professionalism, Uncategorized

Washington D.C. Bar considers relaxing Bar Rules related to non-lawyer law firm ownership and fee splitting

Hello everyone and welcome to this Ethics Alert which will discuss a Washington D.C. Bar committee press release announcing a review regarding the potential relaxing of that jurisdiction’s non-lawyer law firm ownership rules, including potential fee sharing/splitting.  The January 23, 2020 D.C. Bar press release announcing the review is here: https://www.dcbar.org/about-the-bar/news/DC-Bar-Global-Legal-Practice-Committee-Seeks-Public-Comment-on-Rule-of-Professional-Conduct-5-4.cfm

Washington D.C. is the only U.S. jurisdiction that allows lawyers to partner with nonlawyers and those partnerships are subject to certain restrictions; however, a D.C. Bar committee has announced that it will be exploring less restrictive rules.  According to the D.C Bar press release, the D.C. Bar’s Global Legal Practice Committee will be taking public comments on its current system and potential changes until March 9, 2020.

The press release identifies “alternative business structures” and “multidisciplinary practice” as areas of interest. United Kingdom rules permit alternative business structures which authorize legal service providers to apply for licenses allowing outside ownership or non-lawyer investment.  Multidisciplinary practice refers to a type of Alternative Business Structures (ABS) firm that provides both legal and non-legal services.

The current Washington D.C. Bar rule permitting non-lawyer ownership is a modification of the American Bar Association’s Model Rule 5.4(b) and was implemented in 1991.  The rule permits lawyers to practice law in a with non-lawyer partners/owners if the non-lawyers provide professional services within the firm, the law firm solely offers only legal services, and non-lawyers follow the rules of professional conduct.

The press release states that the committee would like to receive responses from Washington D.C. law firms that have non-lawyer partners to determine if the current rules have made it easier to retain professionals including medical doctors or nurse practitioners, mental health experts, economists, lobbyists, accountants and law firm managers. The press release also states that it would like to know if there is any client demand for more types of professional services, and whether firms have lost business because of their inability to deliver these services.

The press release also requests comments regarding how law firms could benefit from sharing fees with non-lawyers, and whether this outside investment would allow greater innovation through technology use or increased financial stability.  The committee is also considering how a rule change would impact firms that currently work with third-party litigation funders, or are interested in doing this and will be examining what type of regulatory structure would work best for non-lawyers working within law firms.

California, Utah and Arizona also have Bar task forces which are examining similar potential revisions and the Chicago Bar Association has announced the creation of a task force.  The ABA’s House of Delegates will also consider a resolution that would encourage jurisdictions across the U.S. to experiment with new regulatory models at its February midyear meeting in Austin, Texas.

Bottom line:   As I indicated, Washington D.C. is the only U.S. jurisdiction that currently allows lawyers to partner with nonlawyers and those partnerships are subject to certain restrictions; however, D.C. is considering relaxing its rules and other jurisdictions are considering new rules related to non-lawyer ownership of law firms.

I will keep you advised…and be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2999 Alt. 19, Suite A

Palm Harbor, Florida 34683

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier

about.me/corsmeierethicsblogs

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Filed under fee sharing, Fee sharing with non-lawyer owned firms, joe corsmeier, Joseph Corsmeier, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer sharing fees with non-lawyers, Non-lawyer ownership, Non-lawyer ownership of law firms, non-lawyer ownership of law firms and fee splitting, Uncategorized, Washington D.C.- rules related to non-lawyer ownership of law firms

Proposed Comment to Florida Bar Rule 4-7.18 would permit exchange of contact information at business events and on business related social media

Hello everyone and welcome to this Ethics Alert which will discuss the proposed revisions to the Comment to Florida Bar Rule 4-7.18 which would permit the exchange of contact information at business events and on business-related social media, with caveats. The proposed revised language is on the agenda for review and final approval by the Florida Bar’s Board of Governors (BOG) at its meeting on January 31, 2020 in Tallahassee.

The BOG’s Professional Ethics Committee proposed additional language in the Comment to Bar Rule 4-7.18, Direct Contact With Prospective Clients which would specifically permit the exchange of contact information at business events and on business-related social media.  The proposed Comment language also cautions that lawyers should not discuss a specific legal matter if the prospective client initiates it, “and defer further discussion to a more appropriate location” if the discussion would “endanger” a prospective client’s confidentiality.

According to the BOG meeting agenda, the justification for the amendment is that “(t)he proposed commentary recognizes that lawyers frequently exchange contact information at business-related events and on business-related social media platforms. These events are usually at least in part to facilitate networking, the initiation of the exchange of contacted information is expected at these events, the lawyer normally would not know the prospective client has the need for specific legal services, and the prospective client would normally be a sophisticated user of legal services and less likely to be unduly influenced by the request.”

The complete proposed Comment language is below:

Permissible Contact

A lawyer may initiate the routine mutual exchange of contact information with prospective clients who are attending the same business or professional conference or meeting or business-related social gathering if the lawyer initiates no further discussion of a specific legal matter. Similarly, a lawyer may initiate the exchange of contact information and profiles via a specific social media platform that is established for the purpose of businesses and professionals exchanging this type of information if the lawyer initiates no discussion of specific legal matters. If a prospective client then initiates discussion of a specific legal matter, the lawyer should decline to discuss the matter at the initial contact and defer further discussion to a more appropriate location when the discussion would endanger a prospective client’s confidentiality. Lawyers should not interpret the above to allow a lawyer who knows a person has a specific legal problem to go to a specific conference or meeting where that prospective client will be in attendance in order to initiate the exchange of contact information. An accident scene, a hospital room of an injured person, or a doctor’s office are not business or professional conferences or meetings within the meaning of the discussion above.

Bottom line:  If implemented, the additional language in the Comment would clarify that lawyers can exchange contact information with potential clients at business events and on business-related social media however, it will caution that lawyers should not discuss a specific legal matter if the prospective client initiates it and if the discussion would compromise a prospective client’s confidentiality, the lawyer should defer discussion of the matter to a more appropriate location”.

Stay tuned…and be careful out there.

Disclaimer: this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19 N. Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier

about.me/corsmeierethicsblogs

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Filed under Communication with clients, Confidentiality, Florida Bar, Florida Bar Rule 4-7.18 Comment- communication with potential clients business meetings and business social media, Florida Bar Rules, joe corsmeier, Joseph Corsmeier, Lawyer advertising rules, Lawyer communication with potential clients, Lawyer ethics, Lawyer Ethics and Professionalism, Uncategorized