As an attorney, you are held to a much higher ethical standard than non-attorneys. You must follow certain guidelines in practice or you will face ethical violations the consequences of which could have a seriously negative effect on your career. Your goal is to minimize risk because it will be impossible to eliminate risk entirely.
The following are 9 main areas in which ethical violations are easily avoidable:
(1) Advertising and Solicitation:
There are ethical guidelines that must be followed when advertising and soliciting clients. It is easy to get into ethical trouble if you are not aware of what is acceptable when seeking potential clients.
Under no circumstance are you allowed to guarantee the outcome of a case or make fraudulent claims when advertising your services. This means you cannot promise or win a case or claim you are specialized in a field in which you are not. You must also have the words “ADVERTISEMENT” printed if the advertisement or solicitation is in writing.
Solicitation of clients is where attorneys get themselves into ethical trouble. You may not solicit a client live in person or on a real-time telephone call unless you have a prior relationship with the person. This rule was created to deter ambulance chasing by personal injury attorneys. The problem attorneys have is not with the potential client but with other attorneys (the attorney the client eventually hires, their family member who is an attorney, etc.). Be careful when soliciting potential clients; I advise calling your local Bar Association if you are unsure of the solicitation guidelines.
Social media or personal/firm websites can get you in a lot of trouble ethically if you disclose certain information without permission. For example, you should always get permission from a client or prior client before using their name to solicit clients or advertise your business. You cannot say “I have represented Madonna” if you do not have Madonna’s permission to do so (and it is unlikely that you do).
(2) Credit Cards and Client Trust Accounts:
The number one reason for ethical discipline in the State of California is for error(s) in the use of credit cards and client trust accounts. It is completely ethical to accept credit cards for payment, however, there are guidelines that must be followed when using them. A client trust account is utilized for holding funds to be distributed to a third party or client, advanced costs and advanced fees. This is where it gets tricky: if you accept advanced costs through a credit card payment, it must be in trust and can never touch your operating account. Always put the full amount of advanced fees/costs in a trust account. You can include a “fixed” clause in the fee agreement holding the total amount in trust for a specified amount of days after which the amount becomes fixed and can be drawn from the trust account. It is advised that you include this clause if you accept credit card payments for anything, just incase it becomes necessary later in the lawyer-client relationship.
(3) Inadvertent Disclosure:
When the opposing side or opposing counsel in litigation or a transaction sends you something that appears to be privileged, there are consequences for not acting according to standard. This means that the moment you determine you are in possession of something you believe to be privileged, you must stop reading or looking at that moment and close or seal and notify the sender immediately. Additionally, you must not use or share any privileged information you may have read or seen prior to determining the material’s status as privileged.
(4) Fee Splitting / Financial Relationships Between Lawyers:
Fee splitting amongst attorneys is a common practice. To avoid ethical issues while splitting fees with another attorney you must make sure to get your clients informed, written consent to the fee-splitting arrangement. Remember that the terms must be fair and reasonable and the fee cannot be increased by virtue of the fee-splitting. This means that you may not increase your clients fee due to the fact that you will be splitting it with another attorney.
(5) Confidentiality and The Privilege:
There are a lot of issues regarding confidentiality and privilege. While I am not going to give you a rundown on all of the potential ethical trouble that surrounds the topic of confidentiality and privilege, I am going give you a quick tip to avoid at least some potential ethical issues: when dealing with a third party (for example, your client’s child or mother or a lower level employee of a corporation) you always need to get permission from your client to disclose confidential or privileged information in communications with this third party. This is likely to happen when your client wants to bring a child or parent along or you are asked to speak with an employee of a large entity. Always ask before divulging anything confidential or privileged. And act with caution…a third party is unpredictable, be careful how much you disclose!
(6) Electronic File Maintenance and Production:
At the end of your representation of a client, you may wonder what are you required to do with their files. You only have a duty to release client files at the end of representation. If the client requests their files, you must promptly release them to your client in the same form that you have been keeping them. This means if you have only electronic or only paper files, it is sufficient to make a hard copy or forward the electronic files to the client on a CD/DVD. You should come up with a policy for how long you will retain client files and include this in your fee agreement. There is no set rule for how long to retain files, but 5 years is generally an acceptable amount of time. However, if you are practicing in environmental, criminal or corporate law you may want to keep your client files for a longer period of time. Once the time has lapsed you may destroy the files.
(7) Candor to the Courts:
This one should be easy. You must always be respectful and honest to the court. An easy way to avoid ethical trouble is to always cite to relevant authority and case law. You are acting dishonestly if you fail to disclose some on point authority that may not lend to a favorable outcome for your client. Another thing to consider is your use of social media; the court can go on your Facebook or Twitter page to check if you’re being truthful. For example, if you claim a scheduling conflict for illness or a doctor’s appointment and you have pictures of yourself perfectly healthy and out having cocktails plastered all over your pages, the court is going to know. Be smart and be respectful and you will be fine.
(8) Disclosing Relationships:
You will likely come across a situation where you have some sort of prior relationship with the opposing side or opposing counsel of a new case. In order to avoid any ethical issues, you need only disclose the relationship to your client; you are not required to obtain a conflict waiver in this case. When disclosing a prior relationship to your client you can say something as simple as “My adversary is someone I have already represented” or “I have a financial interest with…” Disclosing any prior relationship is sufficient to keep you clear of an ethical violation. When you are questioning whether or not to disclose a relationship, always disclose! It is better to be safe than slapped with an ethical violation.
(9) Communication with Represented Parties:
Don’t do it! Contacting and communicating with represented parties without permission from their counsel is a quick way to get yourself in ethical trouble. Similarly, you may not communicate with an employee of a represented entity or corporation if that person has the ability to bind the entity with their statement(s); however, you may contact lower level employees or previous employees but be careful those parties are not represented in some relevant or connected matter either.
If you have questions about complying with required ethical guidelines, your State Bar Association or local Bar Associations are great resources for general inquiries. Generally there will be an ethics hotline where you can ask anonymous questions about ethical issues. It is always advised to ask prior to acting when you are questioning whether your actions may raise ethical issues; it is always better to be safe than sorry! If you follow these 10 tips you will help minimize the risk of ethical violations and serious consequences.
How To Earn CLE Credit on this Topic
For additional information on this topic, Attorney Credits offers a course titled “Top 10 Ways to Stay Out of Ethical Trouble.”
The course is available for CLE credit in the following states: Alaska (AK) | Arizona (AZ) | California (CA) | Connecticut (CT) | District of Columbia (DC) | Georgia (GA) | Illinois (IL) | Maryland (MD) | Massachusetts (MA) | Michigan (MI) | Nevada (NV) | New Jersey (NJ) | New York (NY) | North Dakota (ND) | Oregon (OR) | South Dakota (SD) | Tennessee (TN) | Washington (WA)