2013 Legal Ethics Year in Review
Part 1 – Six tips to keep you and your firm out of trouble in 2014.
In my role representing attorneys with Georgia Bar complaints, I’ve probably talked to over 200 lawyers in 2013 about legal ethics and professional liability issues. Some lawyers proactively called for guidance and others, who waited too long, called for representation. I won’t preach about the best time to call a Bar disciplinary defense attorney like me, but I did find a number of recurring discussion themes worth discussing.
What caused lawyers the most trouble in 2013?
Since I can’t give you specific details, let’s approach this as a set of practice and process tips based on some tough lessons that attorneys have learned over the last year. Some of these tips are surprisingly simple, but they have generated the most calls from – and trouble for – other attorneys:
- Don’t neglect the trust accounting. I cannot believe how many people get dinged each year from trust accounting violations. This isn’t a trust fund, but what I call the “sacred cow.” Make sure that you do not use funds for yourself, separate funds from operating and personal funds, and clearly account for movement between accounts. Personally monitor the balances. Even a simple NSF charge can raise all kinds of red flags, create practice disruption, and trigger an audit. If you accept credit card payments, make sure service fees are swept from the proper accounts.
- Make sure your non-lawyer employees aren’t practicing law. As non-lawyer employees gain knowledge and experience, they may be tempted to cross the line and give legal advice. While they have only the best intentions in mind, client complaints and documentation of these acts can be very damaging.
- Vet all expert witnesses. Take the time to conduct, at a minimum, an exhaustive internet search – on your witnesses as well as the opposing side’s. If your team is not adept at this, hire someone. Even a nugget can lead to a mine of information. You owe it to your clients.
- Write detailed partnership and employment agreements. Associates are getting restless now that the economy is improving. Write your relationship agreements with enough detail to avoid at least typical disputes, like revenue sharing. Don’t promise a partnership, or refer to anyone as a partner, unless you’re willing to make that commitment in writing.
- Don’t underestimate your client’s ability to complain. Bar complaint documentation by grieving clients is improving. Complaints tend to be more carefully crafted, with better internet research, detailed attachments, and linkage between concerns and applicable Bar Rules. Seek expert counsel before you respond, and don’t handle your own defense. You lack the objectivity to succeed.
- Keep your client opinions offline. I wrote about the dangers of Facebook a few months ago, but continue to hear about lawyers getting in trouble for responding too aggressively to client complaints/reviews online. Earlier this year, the Georgia Supreme Court considered the first of such matters in Georgia. Take the high road, or just call the client and try to work things out. Don’t forget about your continuing ethical obligations as well as your malpractice policy notice obligations.
Promise a hamburger and deliver a steak
There’s one other item worth mentioning in this year-end review. As we face tougher competition to secure clients, we’re getting better at marketing our firms and “selling” our services. When speaking with potential clients, it is important to set reasonable expectations starting at the initial consultation. If the client/case is strong, think twice before becoming overly aggressive in your proclamations of possible outcomes. If the client/case is less than optimal, reassess your true interest before becoming overly competitive. Finally, remember that you’re the expert. Clients expect you to share that expertise by saying “no” along with “yes.”
If you would like to discuss any of these areas further, please give me a call. Part 2 of this article will review some good housekeeping tips to enter 2014 in a stronger position with a clean slate and renewed focus on a risk-minimized, ethical practice.