Three Commonly-Violated Ethics Rules

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As an ethics lawyer, it always catches my attention when I see an article proclaiming the “top reasons attorneys face ethics complaints” or something similar. What confounds me is how anyone can be so sure that their list contains to real top however-many complaints, as it seems like reasons to complain abound and state bar disciplinary authorities do not always issue statistics on the basis for the thousands of complaints they receive.  

So, I am hesitant to proclaim that my list contains the top reasons lawyers find themselves in trouble, but I will venture to say that the following are three very common rules that attorneys are accused of violating. So attorneys, keep an eye out for these rules and their applicability in your practice, and be sure to follow them closely to avoid becoming the next subject of state bar investigation.

Three Commonly Violated Rules

1.  ABA Model Rule 1.1 – Competence

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

It is the first rule in the ABA Model Rules, and one adopted in some form in every state. It seems simple enough — we must represent our clients competently. Trouble is, just about any time a client complains about our substantive work, a charge of failing to perform with competence is quite possible. A charge can be included even when you truly did act appropriately. One reason failure to perform with competence is overcharged is that state bar prosecutors often fail to understand private practice of law. In one of my cases, the attorney negotiated for months with the adversary before ultimately filing the client’s lawsuit, as all the pre-filing negotiation was geared toward settling the matter without resort to litigation. The state bar threatened a charge of failing to perform with competence because the case was not immediately filed.

On the other hand, failure to perform with competence can be very supportable. Recently I observed an attorney come to court an hour late for a trial, and when he did arrive he knew nothing about the case he was supposed to try. If his client had actually been there to see him, that client could well have lodged a complaint with the state bar, and a failure to perform with competence charge would have been appropriate.

Keep in mind the duty to perform competently, and all of its component parts. It does not mean only that you must know your area of law, but also that you must prepare for work each and every day, and never show up to a meeting, conference, or court date unprepared.

2.  ABA Model Rule 1.3 – Diligence

A lawyer shall act with reasonable diligence and promptness in representing a client.

Like competence, performing diligently seems simple enough. However, with busy schedules and sometimes unwieldy case loads, plenty of lawyers are not performing with the diligence our clients (and the regulators) expect. Diligence means staying organized, not missing deadlines, following through on all potential legal theories, doing the research that needs to be done to run down possible avenues for your client, and not “dropping the ball” on any client needs.

3.  ABA Model Rule 1.7 –Conflict Of Interest: Current Clients

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest.

The complete conflicts rules (including paragraph (b) referred to above) are relatively lengthy as far as model rules go, but the concept is not complicated. Do not represent a party adverse to your client.

The trouble often comes not because you represented an obviously adverse party, but because you failed in your duties of competence or diligence and did not put a good conflicts check system in place — so you took on a conflicting representation without knowing it.

Another spot of trouble in conflicts is obtaining consent for a conflicting representation without following the rules for proper consent. Section (b) referenced above includes the provision that if an exception to the conflict exists, the clients may consent to the representation but only if “(4) each affected client gives informed consent, confirmed in writing.” This does not simply mean the client initials a spot in the retainer agreement that says they waive all conflicts; states have nuances for what specifically is required, but it must involve actually discussing the matter with clients and suggesting that they seek counsel on the conflict waiver before doing so.

Avoiding Trouble

These commonly-violated rules are probably the first three you learned in law school professional responsibility class, and yet they are discussed here because attorneys are so frequently charged with violating them. So how to avoid running into these traps?

There are many answers to this question, but one of the biggest and most important tips is simply to get organized. Know who your clients are and who their adversaries are, using a good conflicts check database. Get your calendar in order and never miss a deadline. Stay ahead of the game and don’t get overwhelmed with obligations so that you’re always scrambling to keep up and get ready for the next fire you have to put out. And keep abreast of the rules in your state, especially those relating to conflicts and any necessary components of waivers.

(image:http://www.flickr.com/photos/mr_t_in_dc/3756880888/)

  • http://samglover.net/ Sam Glover

    Seeing “competence” on a list of commonly-violated ethics rules is more than a little alarming.

    • Carly

      What is that word doing on a site about lawyers?

      • http://samglover.net/ Sam Glover

        Hurr.

  • Todd C. Scott

    I’m glad you mentioned conflicts. Many lawyers don’t fully see the ethical problem (along with the destructive business consequences) until it’s too late. Conflicts are never obvious situations like, “I just sued my client.” They are more likely to be things like, “Board member for my client, Company X, just informed me that they are about to terminate my other client, CEO John Doe.”

  • Roy

    It has always been my understanding that the vast majority of ethics complaints are service-related. The rules implicated are 1.2 (scope of representation); 1.3 (diligence); 1.4 (communication); and 1.5 (fees).

  • Astraea_Muse

    The number one reason I see for complaints is lack of communication. This is even true in the cases that I see as a volunteer fee arbitrator (where usually a client refuses to pay or wants his or her money back.) If the lawyer’s competence is marginal, being a good communicator can save you from complaint. On the other hand, you can be the best at your practice, if you leave your client hanging without knowing what’s going on and why, you will see complaints.

  • Kris L. Canaday

    Good article. Not surprised that competence made the list, but I am surprised and impressed to see that communication didn’t make the list.
    I’m also surprised to see that conflicts made the list as a commonly
    violated rule, although I did read a most interesting conflict story
    recently!