At one point in the legal industry ethical rules for attorneys were straightforward, allowing for legal professionals to generally use professional common sense to remain within their parameters. Today, however, both the practice of law and consequently, the ethical implications thereof have gotten more complicated. Despite some bright line rules, the application of professional conduct rules is not so simple and may vary slightly from one jurisdiction to another.
Below are five of the most common professional conduct ethical traps for practicing attorneys, according to a recent article published by the American Bar Association (ABA) on the topic.
- Mishandling the Attorney-Client Relationship: Be as clear as possible regarding representation (or lack thereof) because everyone is a potential client and the individual may be under the impression that you represent him or her, even if mistaken. There is no need to have a written agreement to establish an attorney-client relationship;
- Not Paying Close Attention to the Marketing Rules: Lawyers are allowed under local and ABA ethics rules to use the internet for communication purposes. These attorneys, however, should have no control over the audience or where the marketing information will be viewed. Additionally, they may appear to be soliciting clients across state lines, making them subject to the ethics rules of that particular jurisdiction;
- Your Supervising Attorney Made You Do it: Both the ABA rules and local ethics rules seemingly create an out for an attorney acting in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of ethics. This is not enough, however. A subordinate lawyer also has an affirmative duty to report a known ethics violation, even if he or she risks implicating him or herself in an ethics breach;
- Not Communicating with Clients Enough: The duty to communicate is a fundamental part of a lawyer’s fiduciary duty to the client. This duty ensures the client’s interests are properly addressed and served through zealous legal representation. Past failures to communicate that have resulted in malpractice suits or disciplinary action include failure to communicate with one of two clients, divulge a conflict of interest to an ex-client, and clarify the scope of an agent’s authority;
- Conducting Business with Clients: The fiduciary duty owed to a client is so essential to the relationship that an elevated standard of conduct must be met when a lawyer engages in business. Strict disclosure requirements include fair and reasonable terms of the transaction, which must be in writing and written in a reasonably understandable way; the lawyer must inform the client — again, in writing — that he or she should consult with another lawyer about the transaction and give the client reasonable time to do so; and the client must sign a written informed consent regarding the transaction that notes the lawyer is representing the client in the dealing.
Following Ethics Rules
While some rules of professional conduct are common sense, the more complicated the area of the law, the more nuanced ethical dilemmas may become. For this reason, if you are a practicing attorney and have questions about ethics in a particular circumstance contact your local bar’s ethics hotline to seek out advice on how to proceed.
