Attorneys have a (sometimes well-deserved) reputation for ethical slipperiness. I send the following letter to every new client, outlining what they should expect from me as their lawyer. I should note that this is NOT original to me; the writer is the amazing and inimitable Jay Foonberg:
WHAT SHOULD YOU EXPECT FROM YOUR LAWYER?
- Absolute Confidentiality – your lawyer has an absolute responsibility to keep your information private
- Zealous Advocacy – your attorney is be the one person in your life who you know is in your corner 100%
- Candor – your attorney should offer you his or her frank opinions.
- Communication – your lawyer should return your calls promptly and keep you informed on every development in your case
1. Our Confidential Relationship. Everything an attorney (or any member of the law firm) learns about a client during the representation of that client is completely confidential. I am not allowed to discuss your case or legal matters with anyone outside my firm. I am strictly prohibited from breaking the sanctity of the attorney-client relationship.
Explaining your legal situation to your lawyer is like providing an accurate and complete history to your doctor. I cannot effectively help you unless I know all of the facts surrounding your situation, including those that are unpleasant or embarrassing.
To encourage full disclosure, I am prohibited by the State Bar, by ethics and by law from discussing anything about your case with anyone. The mere fact that you need a lawyer may sometimes be something you don’t wish to disclose. For this reason I do not even disclose the names of my clients unless I have their permission.
I will not even discuss these confidences with my spouse, or other family members, or in a public place where they might be overheard.
If a lawyer ever brags to you about the name and/or the legal matters of his client, you should be concerned about the ethics of that lawyer and whether you can expect your name and the facts of your own case to be broadcast to people who could use the information against you.
In truth and in fact, lawyers do sometimes discuss their cases, particu larly the unusual and bizarre cases, with other lawyers or with their spouses. Normally, the discussion would be in such a way that the identity of the client is not revealed. Any lawyer who discusses a client or client’s case out of the office runs the risk of being unethical.
2. Contact with a person represented by a lawyer. An attorney cannot ethically contact anyone on the other side of the case if that person is represented by a lawyer. Therefore, if you have a dispute with Mr. X, Mr.X’s lawyer cannot communicate with you either verbally, in writing or through a third party. I cannot communicate with Mr. X. Mr. X’s lawyer can communicate with me or I can communicate with him. You should not talk to Mr. X unless I have told you to do so. You could inadvertently say or do something prejudicial to your case. There is no ethical restriction on the adverse parties talking to each other, but you shouldn’t talk to your adversary without first getting your attorney’s approval.
The most common violation of this rule by unethical or ignorant lawyers is for a lawyer to send a letter to his client, with a copy to the adverse party, or for the lawyer to send a letter to the other lawyer with a copy to the other lawyer’s client. If this happens to you, I urge you to report it to me immediately for possible discipline.
3. Trust Accounts. Lawyers are required to have trust accounts for client funds and may not mix client funds with personal funds and may not borrow funds from the client. All deposits and withdrawals for your funds into the trust account must be reported to you as rapidly as is reasonable.
4. Fee problems. Fee problems can become ethics problems in certain cases, such as an excessive fee in view of the facts involved. Most local Bar associations have a procedure for arbitrating or deciding fee problems between lawyers and clients. I am always willing to discuss fee problems and, recognizing that there can be honest differences of opinion over fees, I am normally willing to let the Bar Association arbitrate a fee problem. The Bar Association’s fee arbitration committee usually bends over backward to protect the client. Normally, fee problems are not ethical problems but, on rare occasions, they can be if failure to refund unearned fees is an issue.
5. Conflicts of interest. An attorney cannot ethically represent both sides in a dispute. A lawyer must ethically do the best possible for his or her client. A lawyer is not a judge deciding what is “fair and reasonable.” An attorney normally is an advocate, out to protect his client at the expense of the other party, if necessary. For this reason, a lawyer cannot ethically represent both a husband and wife in a divorce, or simultaneously represent shareholders and also the corporation, or partners as well as the partnership, or even conflicts of interest such as co-defendants in a criminal case. Representing multiple people against the same defendant in an accident case or collection case may be unethical where the defendant won’t have the ability to pay every body. A lawyer may not represent a client if representation of that client and total loyalty to that client could be impaired by the lawyers relationship with another person or client.
On the other hand, there are practical considerations. It can be prohibitively expensive for every person to have a lawyer on every small transaction or deal. Therefore, it is normal and customary in some situations for a lawyer to, in effect, represent multiple people with actual or potential conflicts of interest in order to save legal fees and expedite the delivery of the work. For example, I might prepare all of the corporate documents affecting the rights of the 10 shareholders instead of having 11 lawyers involved in the start-up of a small business. In this situation each person should be advised as follows:
- That each person has a right to select his or her lawyer and, indeed, do so if he or she wishes.
- To whom the firm is looking for payment of legal fees.
- That the firm will raise questions and suggest commonly used solu tions which the client may wish to accept, reject, modify or regulate.
- Who, if anybody, the firm would represent if there were a dispute at a later date.
- That each person understands there could be a conflict of interest between that person and the other parties and that he or she is waiving the conflict
- That the person may, at any point, consult an independent lawyer to be sure his or her legal position is understood before signing the final agreement or document
- Who has access to, and control of, the case files in the event of dispute.
All of the above should be explained to all of the parties involved, preferably in writing.
Failure to recognize and properly explain conflicts of interest is a serious ethical violation.
A lawyer should not buy something from a client or sell something to a client without advising that client of the client’s right to get independent legal advice from another lawyer. Failure to do this is a serious ethical violation.
6. Self dealing with clients. The relationship between a client and a lawyer is a fiduciary one.
7. Failure to communicate with a client. Generally speaking, it is not unethical for a lawyer not to keep a client informed of what’s happening on the case or not to return telephone calls promptly. These practices may be bad client relations, bad business or just plain stupid, but they’re not unethical in most cases. There are a few situations where not communicating with a client as to the status of a matter could be unethical, but these situations usually involve the attorney hiding something from the client. A lawyer must act as a fiduciary toward a client and cannot lie to, or hide things from, the client. In these rare situations, failure to communicate could be unethical.
8. Extortion. Occasionally, the opposing party in a dispute has committed a criminal act either before, during or after the act in dispute between the parties. (Employee embezzlement is common, but other examples are income tax evasion or violation of some licensing law.) The client wants to use the lawyer to threaten to expose the person to the authorities or police unless the person does what the client wants (typically, to make restitution or sign documents.)
If the lawyer did what the client wanted done, it might be unethical in some states, but it would be a crime in most states. The crime is extortion. (Generally, extortion is the threat of criminal prosecution, unless the other side pays the consideration of doing what the client wants done.) Usually, a good lawyer will skillfully handle the situation by saying some thing like, “My client will pursue all legal remedies,” or “My client will take all steps available under the law,” but the lawyer will not, or a least should not, write a letter in such a way as to commit extortion.
9. Pretending to have “special influence” over a judge or government official. It is usually unethical for a lawyer to state expressly or to hint that he or she has special influence over a judge or other official. The lawyer is implying that the results will be determined by who the lawyer is, rather than by the merits of the case.
Be careful of a lawyer who expresses the ability to “fix” a case or cites has some form of special influence. This lawyer is giving you open notice of being unethical. This lawyer might not be able to help you if legal skills are required to win your case.
It would likely be unethical for a lawyer to tell you expressly how he or she and the judge play tennis or golf together or are socially close or go to the same church. (Remember also that if the judge could be influenced by these factors, the other lawyer representing the other side may play more golf or tennis with the judge or be closer socially or be more important in the church.)
It would be proper for the lawyer to state that he or she has appeared before the judge and is familiar with the kind of evidence that the judge requires, or that he or she is familiar with some of the judge’s idiosyncrasies or prejudices in the courtroom.
The above are obviously not all of the possible ethical situations that could arise during a legal matter, but are some of the more common ones.
I, as a lawyer, will never practice law unethically. I believe that, in the long run, you, the client, will best be served by ethical lawyers. I will be aggressive when it advances your case. I will give common courtesies to opposing counsel if that will not harm your case. I will never knowingly be unethical and trust that you understand that this is in your best interest.
Eric Ridley is a general practice attorney, emphasizing consumer issues, who practices in Ventura, Oxnard, Santa Clarita and Canyon Country, CA.
Law Offices of Eric Ridley
567 W. Channel Islands Blvd. #210
Port Hueneme, CA 93041