As the complexity of the law – and law practice – has become greater, not to mention more competitive, the ethical rules surrounding the law have become more complex also.
The ABA Journal records the top 10 ethics traps, drawing upon the expertise of Professor Stephen GIllers, who teaches ethics at New York University Law School, who is quoted in the Journal – ““If you think it’s just about the basics, you’re on the road to perdition.”
Among the top 10 – “stumbling” into a lawyer/client relationship or being vague about whether such a relationship exists or not, potentially with disastrous consequences.
Several of the traps however relate to communications and advertising. Knowing the marketing and advertising rules of State Bar Associations and keeping to the rules may appear obvious, but it is one area many lawyers fall foul of. But communicating with clients, or failure to do so properly, is another key ‘fail’.
One way to protect the attorney-client privilege is to add the “attorney-client privileged” label to all communications we think are privileged. Of course, most of us automatically label every e-mail we send that way, just to make sure. Even the order to the deli for five corned beef sandwiches with Russian dressing. If you really want to protect an e-mail, don’t rely on the automatic legend. Label the message itself. Then a judge will know you actually thought about it.
And one of the biggest ethical basket-case issues involves firm breakups and the question of ‘who gets the kids’ – ie clients.
Rule 1.4 requires that a lawyer keep the client reasonably informed about the status of the matter, but ethics opinions at the state level differ on whether a lawyer is obligated to inform clients that he or she is leaving the firm.
There is no prohibition in the ABA Model Rules against a departing lawyer advising clients that he or she intends to leave the firm. The nature of the communication is the major concern.
Among the others –
- The ‘boss made me do it’ defence to misstatements or misreporting
- Failing to communicate with clients, which is more than just returning phone calls
- Becoming commercially involved with clients, which increases the lawyer’s obligations to the client/business partner
- Being ignorant of the ethical issues, which means becoming familiar with the law
- Fee agreement traps that can ensnare lawyers who fail to take care to explain them properly
- Terminating the client/lawyer relationship, which means crystal clarity.