Three Commonly-Violated Ethics Rules
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
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.
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.
(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.
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.