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THE A, B, C'S OF LEGAL
ETHICS,
PLUS D and
E
This activity is approved for
1.5 hours of New York MCLE credit, which applies to Legal Ethics.
Copyright (c),
2002
By
C.C.I.'s Institute for
Continuing Legal Education
1-702-735-0503
3380 S. Wynn Road, Suite
A
L.V., NV
89102-8240
In
our survey of legal ethics from a simple "A,B,C plus
"D"
and
"E"
approach, let's consider these individual
letters
and what
they stand for as guideposts
on the road to ethical conduct.
"A"
stands
for
"advocate". Clients
expect you
to
be
their
advocate and to be available
for them. When you do your best
job
as
your client's advocate, you can minimize problems which
might occur
from failing to act as a zealous advocate for your
client.
"B" stands for "buy
insurance"...malpractice
insurance, that is.
In
certain
places, like London,
England,
nobody
leaves
home
without
an umbrella. Think of legal malpractice
insurance like
your
umbrella.
It seems it never rains
when
you bring
your
umbrella, but often when
you don't.
It's
estimated that about 1/2 of California attorneys don't
have
malpractice
insurance. The Business &
Professions Code
requires
that
in
written
retainer
agreements,
the
attorney
disclose
whether
or
not
the
attorney
carries
errors
and
omissions
insurance (B&P 6147,
6148).
Some
hold
the opinion that the
minimum amount
of malpractice
insurance (i.e., $100,000)
may in certain transactional matters be
insufficient, and that
lawyers who don't carry insurance
may
be
just
those
lawyers
who
tend
to
not have
written
retainer
agreements
or be more likely to be involved in legal
malpractice
claims.
Whatever the opinion, an uninsured lawyer does
not have
the
insurance
protection
a
client
injured
by
the
lawyer's
malpractice may
need.
"C"
is
the biggie...it stands
for "communicate ... communicate
...
communicate!" Clients have the right to control their case,
and to give informed consent
to both the substantive as well
as
procedural
aspects where alternatives
are involved.
They
are
also entitled to know the
risks of various alternatives.
"D" stands for "define your
job". While often
lawyers
tend
to
develop
additional roles to their
clients which
tend
to
have
nothing to do with the
strict attorney-client relationship, those
relations make the attorney's
job more difficult. Not
only does
a
blurring
of
one's
role
as
attorney
make
your
job
more
difficult, but it tends
to dilute your objectivity.
In many states, written
retainer agreements are required. In all
well
managed firms all engagements
should be in
writing.
One
aspect of the retainer
agreement is to set forth in general terms
what
the
lawyer
is being hired
for. Sometimes
the
greatest
misunderstandings arise
when the client believes
the
lawyer
is
being
hired to solve all of
life's problems, when in fact
the
lawyer
is only being retained
to solve a particular problem,
a
particular litigation matter,
or a single transaction.
A
good retainer or engagement letter should cover an
outline of
the
general
parameters where
the
lawyer's
obligation
stops.
Perhaps
an easy way to visualize
this is where
the
lawyer
is
hired
to solve a particular problem.
Unfortunately the lawyer's
activity
may not always produce
the desired result.
Suddenly,
the client finds they need
additional legal services, such as
in
the
case of
a transactional
matter
that
degenerates
into
litigation.
Does
the
retainer spell out clearly
that the
lawyer was
not
engaged
for litigation? An analogy would be someone who
enlists in
the army for a couple of weeks and finds because of war
he/she
is
in the army for the duration of the conflict, which
could be
very
long.
It
is also risky not having some sort of writing terminating,
or
confirming
the termination of the
attorney-client
relationship.An
easy case is where a lawyer is substituted out of a matter
by
the
filing
of
a substitution of
attorney.
A
more difficult
situation
is
determining
without
a
document
such
as
a
substitution
of attorney when the
lawyer's obligations
to
the
client
have
ended; particularly
in
ongoing
matters
such
as
pending
litigation.
In
some cases, it may be necessary to file a motion to
withdraw;
however
you must be alert to
the ethical aspects
of
attorney-client
privilege and confidences, which remain
even
though the
client relationship
terminates. The attorney filing
a motion
to
be
relieved must be careful not to attach as
exhibits
documents
which
may reveal client confidences
or secrets.
If
any such
documents
are
necessary to support
the
motion,
they
can
be
brought to the judge's
attention at the hearing.
You should take care
to be sure the client is aware of the limits
of
your representation, which should be spelled out in
your fee
agreement,
retainer agreement or
engagement
letter.
You
may
think
of this as an addition
to the "C" for communication...are
you
communicating the limits of your
representation; that
is,
adequately
defining
your role
and
communicating it
to
your
client?
Does your engagement
letter clearly provide your services do
not
include
taking,
filing
or
perfecting
any
appeals
or
writ
proceedings?
Can
you
provide
your
client
with
appropriate
alternatives, such as referral
to competent appellate counsel, in
a
manner which protects your client but lets the client make
the major
decisions on litigation choices?
"E" stands for "ethics
pays",
and nothing can be closer
to
the
truth.
It appears that attorneys who have the most problems
with their
clients also have the most problems with the State Bar in
a
disciplinary
context. In my
experience,
much
malpractice
is
correlated to ethical
violations.
One
reason our "A, B, C" list is such is because it
conforms
to
the
general ethical rules, both the ABA Rules and the
California
Rules of Professional
Responsibility.
"A
for
advocacy"
is
really
shorthand
for
the
concepts
of
diligence
and confidence. A zealous advocate is
not
lazy
and
does
his/her
homework. A zealous advocate,
when in
unfamiliar
legal
areas, will associate
competent co-counsel or
refer
the
matter to another competent
practitioner.
A zealous advocate
safeguards the confidences of the client, even
if it's necessary to file
a motion to be relieved.
Likewise, "C for
communication" is also required by the
rules of
ethics,
as the client has the
right to be fully informed about
the
status
of the case, and to
participate in
all
the
major
decisions under the concept
of informed consent. And
of course,
many
client complaints to discipline authorities are based
on a
lawyer's
failure to communicate with the client, and
failure to
keep the client informed
about the status of the client's case.
Inherent
in "communication" is to communicate to the
client all
options
available
to
the client,
whether
in
litigation
or
transactional
work,
and
allow
the
client
to
choose
which
alternative, with your
considered advice and opinion.
We can also think of "C" as avoiding
conflicts of
interest. The
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