I get calls—many calls—from folks who need a quick ethics answer. I started answering them while I was chief disciplinary counsel, though it was kind of against best practices, as anyone who relied on me, and then got into ethics hot water as a result, could have conflicted me, and perhaps my office, out of the case. Thankfully, it never happened.
The CBA Standing Committee on Professional Ethics also offers such help, but with a large portion of the bar not CBA members, I don’t think folks use that service as much as they should. Maybe it’s because they don’t know of the program, or maybe they think they need to be CBA members. (No one checks.)
Jamie Sullivan and I tried to head some of this off by writing what we thought was a pretty comprehensive book on Connecticut legal ethics and malpractice. (I say comprehensive because my first edit of my half had more than 1,200 footnotes.)
Unfortunately, few bought it. Though we had both a second and third edition, I doubt there’ll be a fourth unless we can get the rights back and publish it ourselves. In any event, the phone still rings and, if nothing else, keeps me in the loop on the kind of problems lawyers in the trenches have to deal with.
One constant is who pays for copies of the file if the client requests one after the rep ends. The lawyer pays. End of discussion. Though the ethics rules mandate we maintain some parts of the file for seven years, copying the whole thing really is more for our own protection than client service. A trickier issue is when the request for the file comes from a successor lawyer instead of the client. Same answer.
One set of panicked calls deals with the perennial problem of impaired clients and the lawyer’s perceived need to suggest or take protective action. Most folks get hung up on Rule 1.6, the duty of confidentiality. The answer is in Rule 1.14, dealing with clients under a disability. The second most common question on this is whether the lawyer can substitute their discretion for the client’s choices and act in their best interests. While some states allow lawyers to do so, we don’t. Unless and until a conservator is appointed, we have only one client and our duty to a nutty client is the same as our duty to any other one.
If I had a nickel for every call about nonrefundable flat fees, I’d be as rich as Sullivan. Short answer—there ain’t no such thing. I tell folks that putting the words “non-refundable” into a fee agreement is handing the grievance folks a loaded gun. There’s one CBA ethics opinion that says this issue is a slippery as a watermelon seed. I don’t know which folksy ethics philosopher wrote that, but she or he was right. Yes, there are ways to write a good fee contract to get around some of the rule, but without some careful draftsmanship, fixed fees earned on receipt are simply a unicorn. Or a hand grenade.
Well, my interlocutors will ask, what of the client who refuses to take a fair offer? Am I bound to ride the tiger to trial if I’m going to lose money doing so? Yep—in for a penny, in for a pound. The decision of whether to settle or try is ultimately the client’s. Attempting to exert leverage with the sudden invocation of provisions requiring expense deposits, threats and warnings about bills of costs and other strong-arm tactics may be found to violate the rule allocating responsibility between lawyer and client. Client management is a skill, and requires work waiting until the pretrial to start prepping the client for the fact that the result may be much different than everyone thought or hoped it would be at the outset is not going to be productive.
Finally, there’s the issue of surplus IOLTA funds. There might be somewhere a law office with a perfectly balanced IOLTA account, but I’ve not often seen it. (Other than my firm of course!) The most common problem is surplus funds, often from uncashed checks or leftover money from closing escrows. Once a few months or years have passed, files are closed and memories fade, and soon enough it’s common to have a chunk of money that can’t be readily identified as belonging to any particular client.
The Grievance Committee has a FAQ page that tells you how to handle this, which includes escheating any surplus to the state. Oops! What if I think that some or most of that money is mine, like from undisbursed fees or the money I put into the account to avoid overdrafts? Well, I can tell you the grievance folks are pretty uniform in their answer. Unless you can prove it’s yours (which runs the risks of incriminating yourself for a commingling violation), it’s going to Hartford. I offered in one case to have the client donate the tens of thousands of surplus money to a charity. “No, sorry, we (you) can’t do that.”
Sullivan and I really want to publish a new edition of our book and price it low enough that every lawyer who needs it can afford it. Until then, feel free to call. Or call the CBA Ethics Hotline. You don’t have to be a member.
Former Connecticut Chief Disciplinary Counsel Mark Dubois is with Geraghty & Bonnano in New London.