By JODI SOKOLOWSKI
Buffalo Law Journal

While lawyers generally prefer not to speculate, some local leaders in the legal profession are gazing into their crystal balls to highlight some issues that may be of interest in 2008.

What they're seeing in the year ahead ranges from serious issues such as threats to attorney-client privilege and lawyer depression becoming less taboo to trends in hiring and law-firm administration.

Keeping client confidences

In the wake of high-profile corporate fraud and scandals, the federal government is seeking greater transparency on all levels of a company's administration.

As a result, the attorney-client privilege that lawyers and their clients depend upon has been put at risk by Justice Department policies, according to the New York State Bar Association.

"Those policies encourage organizations to waive their attorney-client privilege and related attorney work-product protection, to refuse to pay counsel fees to employees suspected of impropriety, and to fire employees who assert constitutional or other privileges," NYSBA president Kathryn Grant Madigan said in a press release. "Such practices strike at the core principles of the legal profession and cannot be continued."

The association is calling on the U.S. Senate to pass the Attorney-Client Privilege Protection Act, which was passed by the House of Representatives in November.

In June 2006, the NYSBA's House of Delegates approved a report and recommendations from the association's Task Force on Attorney-Client Privilege, which is calling for the federal government to discontinue such practices.

In the meantime, the state bar's Committee on the Standards of Attorney Conduct reviewed the American Bar Association's Model Rules of Professional Conduct to bring New York state's rules in conformity with the rest of the nation. The NYSBA House of Delegates formally approved the final set of ABA model rules to replace its existing Code of Professional Responsibility.

Bar Association of Erie County President Cheryl Smith Fisher, a member of the state bar's House of Delegates, vehemently opposed one of the new changes based on the potential harm to the attorney-client privilege.

"It could have made it possible to report your client in cases of past crimes and fraud. That's a real big change," said Smith Fisher, a partner in the Buffalo firm Magavern Magavern Grimm LLP. "The way the rule is now is (only) for ongoing crime and fraud. An attorney has a choice to blow a client in."

The House of Delegates opposed that provision by a vote of 2 to 1, and the rule as passed makes no significant change to the state's current policy on attorney-client confidentiality.

The next step is for the rule-making court, the Appellate Division of state Supreme Court, to decide when the proposed rules become effective.

"The new rules, when adopted, will infuse an increased sense of clarity and consistency for New York lawyers. Among other things, there will be a greater guidance for dealing with current, former and prospective clients," Steven Crane, committee chair, said in a November press release.

Attorney depression

While depression among professionals is not a new phenomenon, the ailment is becoming less taboo and more addressable.

The Erie County bar has formed the Committee to Assist Lawyers with Depression, chaired by Dan Lukasik of Cantor Lukasik Dolce Panepinto PC, to help lawyers overcome the challenges that depression presents.

Smith Fisher said the statistics for lawyers with depression are "pretty startling." About 19 percent of lawyers are clinically depressed, compared to 9 percent among the general population. Of first-year law students, 30 percent are clinically depressed. That number jumps to 40 percent for law-school graduates.

"Three-quarters of (Bar Foundation) cases are those with clinical depression," Smith Fisher said. "It's about time we do something about it."

The new committee will work in tandem with the association's Lawyers Helping Lawyers Committee, which aids attorneys with alcohol- and substance-abuse problems, and the Erie County Bar Foundation, which financially assists lawyers who face setbacks.

Strong hiring market

University at Buffalo Law School Associate Dean Jim Newton, who oversees national outreach and strategic planning, said the fall has been "surprisingly robust" for hiring in the legal industry.

"It's interesting in that we didn't know which way this year would go (because) the economy is in question," he said, "but it appears the vast majority of law firms are hiring and did not slow down hiring."

While it's "anybody's guess" what 2008 will bring in terms of employment, Newton said employers are likely to continue "full steam ahead with hiring."

Practice areas that may see increased hiring activity include telecommunications, pharmaceutical defense and project development. Those areas are among the eight in which Phillips Lytle LLP plans to focus its hiring this year.

Law firms nationwide are also creating an executive-level position called professional development director to recruit attorneys and paralegals and guide them through continuing-education requirements.

Phillips Lytle managing partner David McNamara said the firm is currently interviewing for that position and plans to hire someone imminently.

"This position was created by our governing committee, which recognized that the needs of human resources and professional development far exceed the abilities of lawyers to address them, so that we really need an executive-level position dedicated solely to that function," he said.

Public-interest law

A new federal law passed in October will forgive federal loans if attorneys practice in public-interest law or government jobs for 10 years.

"It is already changing what our students are thinking about career goals," UB Law's Newton said. "It will open up that field for students who didn't think they could afford those jobs. It will really open up the market."