GPSOLO October/November 2009
GENERAL PRACTICE, SOLO AND SMALL FIRM
Ethics violations commonly occur during a lawyer’s state of depression or in the context of substance abuse. During these times it is difficult to make the right decision. The American Bar Association (ABA) has a resource to provide information to you so you can make an informed decision about ethics-related issues. Since 1978, the ABA Center for Professional Responsibility has provided national leadership and vision in developing and interpreting standards and scholarly resources in legal ethics, professional regulation, professionalism, and client protection mechanisms. Additionally, their website has specific information for the solo and small firm practitioner at www.abanet.org/cpr/solo.html. This website has resources such as ethics checklists, articles, CLE programs, and video vignettes covering areas such as confidentiality within shared office space, business transactions with clients, conflicts with personal interests, competence, and professionalism. I have asked Peter Geraghty, director, ETHICSearch, ABA Center for Professional Responsibility, to provide more information about this valuable resource in the remainder of this column. Please contact him at Peter.Geraghty@americanbar.org if you have any questions or ideas.
Ethics Research: Resources and Practical Tips
You have a solo practice and the following issues have come up regarding billing and your choice of a firm name:
You represent Client A in a transactional matter requiring you to fly from Chicago to Los Angeles for a meeting. During the flight, you intend to work on estate planning documents for Client B. If the flight takes four hours, can you bill Client A for four hours and Client B for the two hours you spend reviewing his estate planning documents?
You have a solo practice. You currently call it John Smith, Attorney at Law. You are considering hiring a paralegal to help you with real estate closings. Once you hire the paralegal, can you change the name to John Smith and Associates?
Ethics questions such as these come up in the everyday practice of law. When they do, it is important to be familiar with the resources that are available to help you to resolve them quickly and efficiently.
State and local bar services. Many state bar associations operate legal ethics research services or “ethics hotlines.” Some states bars, such those in Florida and California, maintain a large staff of lawyers and para-legals who respond to 20,000 to 25,000 inquiries per year. It is important to bear in mind, however, that most of these services will not give you an opinion on your inquiry, and many will only consult with lawyers who are licensed to practice in that particular jurisdiction.
ETHIC-Search. The ABA operates an ethics research service called ETHIC-Search. It is available to all lawyers, whether or not they are ABA members. The service is staffed by the equivalent of two full-time staff lawyers with a combined 50 years’ experience in legal ethics research. Similar to the state bar services, ETHIC-Search provides research guidance only and does not give opinions or advice as to how to handle specific problems. Lawyers who call ETHIC-Search are given citations to applicable ABA, state, and local bar ethics opinions; case law; and law review articles—usually within 24 hours from the time that they call or e-mail their inquiry. The research provided is not intended to be comprehensive, and the inquirer is responsible for making the final decision of how to handle a particular problem. To contact ETHIC-Search, call 800/285-2221 and press 8, or send an e-mail to firstname.lastname@example.org.
Your local law library and the Internet. If you decide you want to research the question yourself, there are many resources that are available at your local law library and also on the Internet. One of the most useful is the ABA/BNA Lawyers’ Manual on Professional Conduct (American Bar Association and Bureau of National Affairs). It consists of three basic parts: a comprehensive treatise on legal ethics, a bimonthly summary of current developments in legal ethics and professional discipline, and digests of thousands of state and local bar association ethics opinions. The Lawyers’ Manual is available from the ABA Webstore ( www.abanet.org/abastore), Westlaw ( www.westlaw.com), and the Bureau of National Affairs website ( www.bna.com). The state bar digests of opinions are very useful when it comes to analyzing how to proceed with an issue because very frequently there are opinions that have dealt with the same or similar set of facts, so you can see how a state bar opinion has analyzed and applied the rules to the issue. Bear in mind, however, that even though most states follow a version of the ABA Model Rules of Professional Conduct, there can be differences among states, and sometimes these differences can result in opinions that come to a different result than what would be expected in your jurisdiction. So always be careful to check the rules as adopted in the state where the opinion was issued.
If you find a digest of a state bar opinion that looks interesting, it is often best to read the full text. Most state bar opinions are available on the state bar website. A list of such websites, along with links to the various state bar rules of professional conduct and state bar ethics hotlines, is available on the ABA Center for Professional Responsibility website at www.abanet.org/cpr/links.html#states.
Other resources that will be available in your local law library include the 2007 edition of the ABA Annotated Model Rules of Professional Conduct (sixth edition, American Bar Association, 2007); Geoffrey C. Hazard’s and W. William Hodes’ The Law of Lawyering (third edition, Aspen Publishers, 2008); and Legal Ethics: The Lawyer’s Deskbook on Professional Responsibility by Ronald D. Rotunda and John S. Dzienkowski (2008-2009 edition, Thomson West, 2008). For further information, a bibliography of ethics research materials including treatises, annotated rules of professional conduct, and websites is available on the ETHICSearch website: www.abanet.org/cpr/ethicsearch/resource.html.
When You Need Advice
Sometimes, lawyers may need more than ethics research help—for example, when they have had a disciplinary complaint filed against them or when they are faced with a complex conflicts question that may require withdrawal from the representation of a client. To the extent that a lawyer is looking for advice on how to handle such situations, there are many lawyers who have a concentration in legal ethics matters and who will give advice and also represent lawyers who have had ethics complaints filed against them. Your state or local bar association may be able to give you referrals to a lawyer with this type of practice.
Back to the Hypotheticals
Now, back to the hypotheticals that I posed above.
Billing. With regard to the first question—can you bill both Client A and Client B for work done on that four-hour plane flight?—the answer is most likely no. This issue was specifically addressed in ABA Formal Opinion 93-379 Billing for Professional Fees, Disbursements and Other Expenses, which was issued by the ABA Standing Committee on Ethics and Professional Responsibility in 1993. A copy of the full text of this opinion is located at www.abanet.org/cpr/nosearch/93_379.pdf. Under Rule 1.5 of the ABA Model Rules of Professional Conduct, a lawyer’s fees must be reasonable. Clearly, a lawyer who spends four hours on an airplane and who bills two clients for six hours of work has billed the client for more time than he actually spent on the matter. The Committee stated:
The lawyer who has agreed to bill on the basis of hours expended does not fulfill her ethical duty if she bills the client for more time than she actually spent on the client’s behalf. . . . A lawyer who flies for six hours for one client, while working for five hours on behalf of another has not earned eleven billable hours. . . .
Many state bar opinions agree with the ABA position. (See, for example, Oregon Opinion 2005-170 (2005), State Bar of California Opinion 1996-147 (1996), and State Bar of Alabama Opinion 2005-2 (2005). For further information on this topic, see the article “When Two Plus Two Doesn’t Equal Four,” available on the ETHICSearch website: www.abanet.org/media/youraba/200712/article11.html.)
Firm names. With regard to firm names, most state bar opinions take the position that a sole practitioner may not refer to his law practice as “John Smith and Associates” if in fact he is a sole practitioner and has no associates. Rule 7.1 of the ABA Model Rules states that a lawyer shall not make a false or misleading statement about the lawyer or the lawyer’s services. Rule 7.5 Firm Names and Letterheads states that a lawyer shall not use a firm name that violates Rule 7.1. (See, for example, South Carolina Opinion 05-19 (2005); false and misleading for a lawyer seeking to open a governmental affairs and lobbying firm consisting of the lawyer and two nonlawyer employees to name the firm “John Doe and Associates, P.A.”)
There is some disagreement, however, as to whether a lawyer can use the term “Associates” in the firm name if there is only one associate in the firm. (See Arizona Opinion 90-1 (1990); a law firm may use a name such as “X and Associates” provided that at least one associate lawyer actually assists the named lawyer in his practice.) Other state bar opinions take an opposing view. (See, for example, District of Columbia Opinion 189 (1988); a lawyer may not use a firm name such as “John Doe and Associates, P.C.” unless he normally employs two or more associate attorneys because the word “associate” normally refers to a lawyer.) Opinion 20 of the Minnesota Lawyers Professional Responsibility Board (2009) made a distinction between the use of the terms “Associates,” as in “John Smith Associates,” and “and Associates,” as in “John Smith and Associates.” The opinion stated that it was false and misleading for a law firm to use the term “Associates” in the firm name unless there are at least two lawyers in the firm and also false and misleading to use “and Associates” unless there are at least three lawyers in the firm. For further information on this topic, see the article “Are There any Doctors or Associates in the House?” that appears on the ETHICSearch website: www.abanet.org/media/youraba/200709/ethics.html.
As these hypotheticals illustrate, it is very important to check your local rules, ethics opinions, and case law when confronted by an ethical dilemma. ETHICSearch or your state bar may also be able to help.