In continuing our series about lawyers’ “sins” that can lead to claims, this article focuses on pride. Attorneys are sometimes viewed by the public as bombastic or willing to say anything to win a case. Attorneys also are known to regale fellow members of the bar with their “war stories” about the biggest case they won, the most difficult client they ever had or the best exchange they ever had with a judge.
Regardless of whether such stereotypes are true, the fact remains that attorneys may feel a tension between their obligations to maintain confidentiality and civility with their desire to boast or promote their practice. Indeed, in order to win new clients, attorneys sometimes have to describe their experience to show that they are well-qualified. However, by bragging about their exploits, attorneys run the risk of either improperly disclosing client confidences or of misrepresenting facts or analyses to potential new clients, as discussed below.
The Ethics of Marketing
It is pretty common for attorneys to engage in marketing, whether in advertisements or even as part of their firm’s bio website. Self-promotion, while inherently a part of marketing in the practice of law, can lead to complications in attorney-client relations.
For one, many attorneys use their bios to discuss their eminence in the field or their experience in a particular type of law. Depending on the wording, this can pose some risk. Model Rule of Professional Conduct 7.2(c) provides that “[a] lawyer shall not state or imply that a lawyer is certified as a specialist in a particular field of law, unless: (1) the lawyer has been certified as a specialist by an organization that has been approved by an appropriate authority of the state or the District of Columbia or a U.S. Territory or that has been accredited by the American Bar Association; and (2) the name of the certifying organization is clearly identified in the communication.” Thus, an attorney can be in violation of the rules of ethical conduct if they use their bio to declare themselves a certified expert, absent these credentials.
In addition, the web bio can create risks relating to confidentiality. Generally speaking, it can be risky for an attorney to speak about a case or representation—whether to the press or on the web bio—absent client permission. Most attorneys in this situation will work with the client to determine what materials or information can be made public, even in situations where the representation is public record.
In the absence of direct client consent, many attorneys will sanitize the content on their web bio to describe the experience without name-dropping the client. However, describing a matter anonymously is typically only effective if the public cannot easily ascertain the case from the many clues dropped by an attorney.
Speaking to the News Media
Sometimes, for some high-profile cases, reporters may ask attorneys to comment on their cases or the parties involved. In such situations, attorneys may be tempted to engage in some light trash-talking or to boast about their ability to “win” against opposing counsel. In addition to the risks of confidentiality or about appearing unusually prideful, such tactics could violate the Rules of Professional Conduct.
Rule 3.6(a) of the ABA Model Rules of Professional Conduct prohibits an attorney from making “an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”
This rule can be tricky to interpret in practice. Even the comments to the rule acknowledge that “[i]t is difficult to strike a balance between protecting the right to a fair trial and safeguarding the right of free expression.” The public may have a right to know, and a client may have a right to address public concern, but lawyers can find themselves getting in trouble for going too far. Lawyers may also have the right to “protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client.” Rule 3.6(c).
The comments to the rule also identify circumstances regarding which public statements may be more likely to lead to prejudice. These include comments as to the character of a party to the litigation, a stated opinion as to a defendant’s guilt or innocence, or disclosing information that is likely to be inadmissible as evidence in a trial.
Providing Risk Assessments to Clients
Clients often rely on their counsel to provide reasonable assessments of risks and liabilities, and then may use those assessments to make decisions about the case, such as what discovery to engage in or whether (and for what amount) to settle.
In reaching such opinions, attorneys typically depend on the facts, applicable law, and, sometimes, the experience of the attorney. Although attorneys are not expected to be psychic, clients may seek to hold them accountable if their assessment deviates from the standard of care. The risk is that where the actual outcome differs dramatically from the attorney’s prediction, the clients (or their insurers) may try to blame the attorneys for not seeing it coming.
Sometimes, attorneys may feel the need to pad their chances of success in a case, either due to self-preservation (i.e., the desire to stay on a case that may not be proceeding as expected) or as part of a savior complex (i.e., the desire to be the saving grace in a case). In such situations, an attorney may choose to emphasize the import of their own involvement to the outcome of the case. Such a move may soothe an ego, but can come with a steep risk. Indeed, if the attorney maintains that their involvement is such a strong factor indicating success, there is a risk that the client could try to prove the converse if the case goes south and seek to hold the attorney liable.
By being aware of how pride or ego can impact the practice of law, attorneys can take steps to focus instead on the merits.
Shari L. Klevens is a partner at Dentons US in Atlanta and Washington, D.C., and serves on the firm’s U.S. board of directors. She represents and advises lawyers and insurers on complex claims and is co-chair of Dentons’ global insurance sector team.
Alanna Clair, also a partner at Dentons US in Washington, focuses on professional liability and insurance defense. Klevens and Clair are co-authors of “The Lawyer’s Handbook: Ethics Compliance and Claim Avoidance” and the upcoming 2019 edition of “Georgia Legal Malpractice Law.”