X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Lawyers just starting in the profession rarely think that charges of ethical violations will ever be applied to them. Many junior lawyers think, “I’m on the lowest rung of the ladder, how much trouble could I get in?” Statistics from some jurisdictions, however, suggest that as many as 25 percent of disciplinary committee referrals apply to lawyers with less than 10 years of practice experience. Many other junior lawyers simply assume that their law firms have structures (to check conflicts, to maintain separate client accounts, etc.) that will handle all ethical problems. Yet these structures are only as effective as the firm’s attorneys make them. Furthermore, even if an ethical violation could, or even should, have been identified and resolved by firm supervisors, that doesn’t reduce the career damage that a junior lawyer may suffer. Here, then, are some practical suggestions to help ensure that ethical problems do not overwhelm you in the early years of your practice. These guidelines do not focus on the details of ethical rules (which vary from jurisdiction to jurisdiction), and are not based on particularized hypotheticals (the stuff of many ethics opinions and law review articles). Instead, these are general suggestions for how to avoid getting yourself into trouble and, when trouble appears, for getting yourself out of trouble as quickly and painlessly as possible. APPROACH THIS SUBJECT WITH HUMILITY There is a form of self-deception, based in part on hubris and in part on laziness, which takes as a given that “I would never do anything unethical.” The attitude that I don’t even have to think about this issue is a ticket to ruin. The subject of legal ethics can be very difficult, with issues and rules that may be much more complex and murky than you realize. There are often conflicting authorities on these issues, and genuine differences of opinion on what is, and what is not, ethical. Moreover, there are often powerful incentives (adversaries seeking to gain advantage, disgruntled clients with an ax to grind) for others to raise ethical issues against you, even when you have made a good-faith effort to behave within the confines of the ethical rules. You are not necessarily well-prepared to address these difficult issues. It is an open secret that Professional Responsibility is one of the least-attended classes in law school (often a pass/fail course). The abbreviated preparation that most junior lawyers make for the Multistate Professional Responsibility Examination, moreover, is generally just enough to pass the test. Furthermore, virtually all ethical rules are tempered to some degree by what is “normal” and “reasonable.” Both standards are, by definition, difficult for a new lawyer to know and apply. GO FOR HELP Seek advice and consultation early whenever a potential ethical problem arises, rather than trying to invent a solution to the problem, or (worse yet) letting the problem drift, without any solution, until it becomes too big to be solved effectively. In most large law firms, a professional responsibility or loss prevention partner is specifically charged with the duty to address potential ethical problems. Seek that person out, if you need help. Many smaller problems can be understood and addressed by any senior lawyer with sufficient experience. For sole practitioners, consultation with other colleagues may serve the same function. Many bar associations, moreover, offer ethics-related materials on their Web sites (including solutions to common problems), and may even provide hotline consultations on ethics issues. At the very least, keep handy a copy of the ethics code that applies in your jurisdiction. GET YOUR HOUSE IN ORDER A person’s life (family, health, finances, work) cannot bear stress in too many areas at once. If you are having a serious personal problem (an elderly parent, a spouse who has lost a job, a child who is ill, and any of dozens of other circumstances that can prevent you from fulfilling your professional responsibilities) deal with that problem before it spills over into your work. You may simply not have time to work on everything that you could handle under normal circumstances. Your attention may be distracted, and your judgment impaired. And often, a crisis at home and at work can spiral into other problems (drug and alcohol abuse, depression), which can even further prevent you from functioning effectively. Read a few disciplinary committee opinions. You will often see a pattern that starts with a personal problem and leads eventually to serious ethical violations. If you are in trouble, ask for help. If you need to take time off or share some work or get some professional counseling, do it. The myth of the lawyer as Superman or Wonder Woman is just that. Part of your professional responsibility involves knowing and dealing with your limits. Senior lawyers and clients will generally respect you for dealing forthrightly with such problems. Conversely, if you insist on working at 110 percent when your real capacity is 50 percent, they will rarely be forgiving of lapses that could have been avoided if only you had sought help. PROTECT YOUR REPUTATION Exercising professional responsibility does not simply mean avoiding inquiry from the disciplinary committee. That should be the least of your goals. The real goal is to uphold the highest standards of the profession, in every aspect of your career. Judge yourself as others will judge you — not whether you are an ethical person, but whether each one of your daily activities (a letter to an adversary, a phone call with a client, a representation to a court) meets the standards for ethical conduct. Building a reputation for ethical conduct starts the moment you enter into professional activity. Even as a summer associate or law clerk, senior lawyers will begin to make judgments about you. Are you trustworthy? When you say that you will get a project done on time, can a senior lawyer rely on you? Are you responsible? When a mistake occurs, will you candidly admit the problem and get it fixed, or will you try to push the responsibility on to someone else? Are you diligent? Do you cut corners and turn in minimally sufficient work on projects you do not particularly enjoy, or do you make sure that all your work, even what may seem like drudgery, is first-rate? Your reputation for ethical conduct will also quickly extend to clients. Any client who observes you engaging in unethical conduct with others (fudging a response to an adversary, advancing an argument you know is unsound) may soon begin to wonder, “If my lawyer is willing to act unethically toward others, how can I be sure I will not be treated the same way?” Indeed, in many instances, clients may come to you specifically for ethical advice. You are an adviser on many substantive areas of the law (what does the tax code require; what does a contract provision mean; what are the regulatory issues involved in a deal). The same is true for ethics. Your clients (especially junior-level business people or assistant general counsel) will often depend on you to tell them definitively, “No, we cannot do that. It is unethical.” CLIENT CONFIDENCES ARE KEY The very essence of what a client expects from a lawyer is confidential legal advice. Client confidences belong to the client, not the lawyer. Your first order of business should always be to maintain confidences, unless otherwise instructed by the client. The temptations are many. You will be asked by family and friends about your work, and you will be tempted to swell with pride and tell the details of the great work you are doing. Moreover, even in the first months of practice, you may be bombarded with inquiries from recruiters, who seem to want to “get to know you.” And there are ample outlets (e-mail groups, Internet professional bulletin boards) for complaints and comments about law firm life. You are not precluded from saying anything about your work in these situations, but you are precluded from revealing client confidences. Be careful. If you reveal a client confidence, the mere fact that you had no intention of gaining any personal benefit will not repair the breach. Any misuse of client confidences for personal gain, of course, may get you in even more trouble. Two words, insider trading, should remind you that trading in securities based on information received in your professional capacity is strictly forbidden. ANNOUNCE YOUR STATUS Until you have passed the bar and have been admitted, you are not authorized to practice law. Individual jurisdictions may have varying rules on what constitutes the practice of law, but in general you should take all reasonable steps to ensure that no one (not clients, not adversaries, and certainly not judges) mistakenly assumes that you are a lawyer. Many recent law school graduates sign all correspondence with a notation of “admission to practice pending,” or “not admitted to practice.” Consult with a senior lawyer for directions on this issue. Indeed, it is generally a good idea to consult with a senior lawyer before sending any correspondence outside the firm. Especially during the early years of practice, a quick check with a senior lawyer can help avoid simple errors (misspelled client names, improper format), and may even reveal larger problems (developments in the matter that are unknown to you because of your position). At the very least, such check-ins can be learning opportunities, and may also help to demonstrate that you are diligently keeping the supervising lawyer informed of your activities. HANDLING FRIENDS, FAMILY Shortly after you enter the practice of law (and perhaps even earlier, while you are in law school), you will begin to receive inquiries from family, friends, and acquaintances, asking you for a “little” advice or help with a legal problem. In many instances, this little bit of advice quickly blossoms into a larger request. You’re regaled with the details of the person’s problem. You may even be asked to take some official action (“Would you mind writing a letter to my landlord?” “Could you call the IRS for me?” “Maybe you could talk to my employer?”). In effect, you are being asked to provide free legal advice and assistance. You may be forming an attorney/client relationship, even though the engagement is unpaid. As a result, you may be stuck with the obligation to protect your client’s confidences, and to avoid conflicts in representation of some adverse client. You may even be stuck with the duty to continue to represent the client, and (worst case) you may be stuck with a claim of malpractice if something goes wrong. You are not necessarily prohibited from providing free legal advice and assistance, but you must be clear when you have entered into an attorney/client engagement. Most law firms have definitive policies on what is required for approval of any engagement (client conflict clearance, specification of terms of engagement, etc.). If those policies have not been followed, you are asking for trouble. Until you have confirmed that the engagement is proper (by checking the appropriate firm policies and by consulting with a responsible senior lawyer), you should be as clear as possible with the relative or friend that you are not undertaking a representation, that you are not accepting confidential information in connection with such representation, and that you cannot commit to provide any legal service until the engagement has been approved. AVOID CHARGES OF INCOMPETENCE No lawyer should purport to have expertise in every area of the law. There will be the temptation, especially in the small or solo law firm, to take any work, so long as the client can pay the bill. Despite cinematic portrayals of lawyers with no experience who miraculously find a way to win their first case (often a murder case, or something similarly dramatic), the reality is that legal expertise generally comes from experience. If you do not have sufficient experience and expertise in a given area, you must refer the matter to an appropriate attorney, or at least make arrangements to associate with one for purposes of the representation. You must also be candid with your client about your lack of experience. Do not provide “off the cuff” advice on an issue about which you are uncertain. Tell your client directly, “I am not an expert in this area” or “I would need to do more research to give you a definitive answer.” In a larger law firm, especially, seek out the advice of real experts in any area that is unknown to you, and offer to have the real experts advise the client about matters within their ken. Be careful, too, about taking on a matter where it may be difficult to provide your client effective representation, given the fees at stake. Pro bono clients, in particular, are clients just like any other. If you cannot afford to provide full, effective service on a pro bono matter, you should not take it. Furthermore, you should not quote a reduced fee, or budget cap, for some legal work where the restrictions will make it practically impossible to do the necessary work. CONSULT FREQUENTLY WITH CLIENTS If there is one thing a client hates, it is a lawyer who refuses to return calls and is not heard from for months on end. This is not just a matter of client relations. Clients expect, and have a right, to be informed of developments in their matters. Clients who are kept in the dark, moreover, are much more likely to claim (when matters take a poor turn) that their lawyers have acted improperly. Make it a habit to provide your client with courtesy copies of all relevant correspondence (to you and from you). Some clients may want you to restrict the paper flow, but let the client tell you that; do not simply assume that your client will not be interested in anything other than “major” developments (as you subjectively define them). Remember, moreover, that you are (at most) merely an agent of your client. You can and should make recommendations, you can lay out the options for your client, but you cannot substitute your judgment for your client’s own decisions. In that regard, be especially wary of making representations to an adversary about what your client may do, unless you are sure of your client’s wishes and are sure that your client has given you authority to make such representations. There is a clear difference between making a tentative agreement (subject to your client’s approval) and stating (in sum or substance) that your client will agree to what is being proposed. CONTRIBUTE TO THE PROFESSION There are many in the law who claim that the profession has changed, for the worse. Many see the drive to make the law more like a business than a profession as inevitably leading to a decline in ethical values. Yet there are hopeful signs everywhere. The profession has replaced some of the worst vestiges of bygone days (overt racial and sexual discrimination) with a developing attitude of inclusion and success based on merit. Some of the worst forms of incivility (“Rambo” litigation tactics, for example) have been widely condemned, and addressed in new codes of professional conduct. Many serious efforts are under way to provide services to traditionally underserved populations. These developments, and others like them, deserve your support. Improvements in the reputation of the legal profession ultimately benefit all in the profession. Start by modeling good behavior of your own. Go further, however, by contributing (within your law firm, on bar committees, by teaching, through contributions, etc.) to improvements in the profession as a whole. Today’s junior lawyers will lead the profession tomorrow. Do your part to keep the profession on course. Steven C. Bennett is a partner in the New York office of Jones, Day, Reavis & Pogue and a co-director of the new associates group in that office. The views expressed are solely those of the author and should not be attributed to his firm or its clients.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.