Is That an Ethics Violation?
By Paula J. Frederick
When you are a lawyer, what you don’t know can definitely hurt you—particularly when it comes to the ABA Model Rules of Professional Conduct. For the most part, the rules do not require an element of intent in order for a violation to occur. Beware of the following uncommon ethical traps:
Misconduct by Others
“It wasn’t my idea—my managing partner told me to bill all four clients for the same brief!”
Rule 5.2 clarifies that a lawyer is responsible for violating the rules even when she acts at the direction of a supervisor. Where the supervisor’s advice is reasonable and the ethical duty unclear, the subordinate lawyer may follow the advice without running afoul of the rules.
When a lawyer is called to account for conduct committed at the direction of others, her inexperience in the practice of law may be a mitigating factor that could decrease the level of culpability and the punishment imposed. In the end, though, even a new lawyer is responsible for her own compliance with the Rules of Professional Conduct.
“My secretary stole from my escrow account! You can’t blame me for that!”
Many lawyers forget that the Rules of Professional Conduct cover the conduct of nonlawyer staff. Rule 5.3 requires a lawyer to “make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that . . . [employee] conduct is compatible with the professional obligations of the lawyer.” Because a lawyer disciplinary authority lacks jurisdiction over anyone without a law license, the rules can only require that the supervising lawyer train and properly monitor employees.
That means that a lawyer could, indeed, face discipline as the result of employee theft. The disciplinary authorities would investigate whether the lawyer had reasonable safeguards in place to prevent misuse of the escrow account and whether the lawyer’s supervision was reasonable under the circumstances.
Misconduct in Another Jurisdiction
“What can the Georgia Bar do to me? I’m not even a member!”
Plenty. Georgia is one of the numerous jurisdictions that have adopted Model Rules 5.5 and 8.5 on multi-jurisdictional practice. A lawyer who engages in temporary practice in a jurisdiction where he is not licensed subjects himself to that disciplinary authority. As multi-jurisdictional practice has spread, disciplinary prosecutors routinely handle cases against visiting lawyers and provide the record of the case to the lawyer’s home jurisdiction so that it may impose reciprocal discipline.
Technical Violations of the Escrow Rules
“I must have grabbed the wrong checkbook.”
If you accidentally pick up the wrong deposit slip so that settlement funds go into your business account instead of into escrow, you have violated Rule 1.15—even if you immediately discover your error and transfer the funds to the proper account. If you are bad at typing numbers and inadvertently add an extra zero to a ledger entry, you have set the stage for a violation. You can violate Rule 1.15 even without stealing a dime, and without hurting a client.
Your Business May Be the Bar’s Business, Too!
“It’s a business matter, not an ethics issue.”
The firm has imploded; it’s clear the lawyers will be going their separate ways. As the firm’s only associate, you expect to be left out in the cold. In a preemptive strike, you visit the office after hours and take the files of the cases you have been working on. You plan to let the clients know that you’ll still be handling their cases from your brand-new solo practice. The next morning you are not surprised to hear from your former partners. You are surprised to hear from the police and from your disciplinary authority.
Some jurisdictions would treat this as a business dispute; others would conduct a disciplinary investigation. All would be concerned about the impact on clients—whether they received proper notice of the firm’s demise, whether their matters were properly handled during the breakup, and whether there was anything deceptive or misleading in your attempt to take the business with you.
Duties to Nonclients
“She can’t grieve me. She’s the adverse party!”
In most jurisdictions, anyone can file a grievance against a lawyer—even the party or the lawyer on the other side of a matter. Lawyers sometimes forget that their ethical duties extend to the person on the other side of a case. Of course, a lawyer has to be truthful in her statements to an adverse party (Rule 4.1); there is also an obligation to refrain from asserting frivolous claims (Rule 3.1) and to communicate through counsel when an adverse party is represented (Rule 4.2).
You didn’t set out with a plan to commit an ethics violation. Forget what you learned back in criminal law class about mens rea. Even the slightest degree of velleity can be enough to land an unwitting lawyer before the bar ethics police. Tread carefully!