GPSOLO January/February 2008
Ethical Hazards of Solo and Small Firm Practice
As a solo or small firm lawyer, you are especially vulnerable to accusations of unethical conduct. The reasons have nothing to do with your ability or character as compared to other lawyers. You are especially vulnerable because your practice setting increases the likelihood that a bar complaint will be filed against you sometime during the course of your career. You owe it to yourself to recognize the ethical hazards that accompany your chosen career, devote time and energy to managing the risk, and be vigilant in protecting yourself against accusations of misconduct.
The Deck Is Stacked
Solo and small firm practice is uniquely rewarding but also uniquely challenging. It requires that you wear many hats and juggle many tasks and responsibilities. You must devote substantial time and attention to practice management and client management. Solo and small firm practice can be very satisfying—it makes the practice of law a way of life characterized by self-reliance, self-determination, and self-realization. But it also requires a high level of energy and sustained attention to the needs and demands of each client. A lapse in effort can easily result in an actual or alleged breach of ethical obligations, simply because you do not enjoy the same safety net that typically exists in larger firms.
Your risks may be compounded by factors related to your practice areas. Solos and small firm lawyers tend to focus on such fields as criminal defense, domestic relations, and personal injury. Many of your clients are individuals, and most of them do not possess a sophisticated understanding of the legal process. Their perception of your services is often influenced by strong emotions about their legal problems, coupled with high hopes about what you will be able to accomplish on their behalf. As compared to corporate and institutional clients, they may be quick to criticize or second-guess your efforts.
To make matters worse, such clients are much more likely to file bar complaints when they believe that they have not received the level of attention or the quality of representation they deserve, even if this perception is mistaken. They don’t know where else to turn for redress, simply because you are not a member of a large organization that includes senior partners, client managers, practice group leaders, and mentors. With no one else to call, they call the state bar association or disciplinary agency and say, in one fashion or another, “I’m not happy with my lawyer.” That may be enough to trigger the issuance of a complaint form, followed by the submission of a bar complaint, followed by a searching examination of your conduct by a disciplinary authority.
The result can seem quite unfair. Imagine that a young lawyer in a large firm fails to handle a matter diligently. The client becomes concerned and calls a senior partner, client manager, or mentor. The young lawyer may suffer serious career consequences, but the entire incident rarely comes to the attention of disciplinary authorities. Meanwhile, another young lawyer makes the same mistake as a solo. The client becomes concerned and calls the state bar association or disciplinary agency. The result may be a public disciplinary order that taints the lawyer’s reputation for many years.
That reality is borne out by disciplinary statistics throughout the nation. Solos and small firm lawyers are the subject of most bar complaints, not only because of their total number but, more importantly, because of the factors mentioned above. Consequently, disciplinary authorities devote most of their time and attention to the conduct of solos and small firm lawyers. As a further consequence, most public disciplinary orders concern solos and small firm lawyers. In short, what comes out of a process is a direct result of what goes into it.
Sadly, the number of disciplinary orders against solos and small firm lawyers promotes a negative perception of solo and small firm practice among other lawyers and among the public at large. It also promotes a perception among solos and small firm lawyers themselves that disciplinary authorities are biased against them. The fact of the matter is that the attorney disciplinary system itself tends to focus on the conduct of solos and small firm lawyers simply because it relies heavily on bar complaints as a source of information about professional conduct. The bias, if any, is a systemic bias.
Should the system be changed? That question is the subject of an ongoing debate among bar leaders, disciplinary authorities, and legal ethics specialists. Some experts maintain that it is entirely appropriate for the disciplinary system to focus on the conduct of solos and small firm lawyers because lawyers in other practice settings are typically subject to a variety of controls and incentives that effectively regulate their conduct in other ways. Whether or not that is true, most lawyers would probably agree that an associate who is dropped from partnership track at a large firm does not suffer career damage that is equivalent to a solo who receives a public disciplinary order for the same ethical violation. The overriding goal of regulating professional conduct may be served in both circumstances, but that doesn’t change the fact that the solo or small firm lawyer is more likely to suffer a disciplinary sanction for reasons inherent in the disciplinary process.
Regardless, it appears unlikely that the disciplinary system will become less dependent on bar complaints anytime soon. The operative fact, therefore, is simply this: As a solo or small firm lawyer, you face a significant risk that your professional conduct will be reviewed by a disciplinary agency because of a bar complaint against you, regardless of your best efforts to serve your clients ethically and well.
You should also understand that the agency’s inquiry into your conduct may not be limited to the allegations of the bar complaint itself. In most states, disciplinary agencies have the power to investigate any suggestion of unethical conduct, regardless of how it comes to their attention. Thus, it is not unusual for an agency to focus on some aspect of a lawyer’s conduct that is only mentioned in passing in a bar complaint against the lawyer. It may even pursue an issue that is raised, however unwittingly, by the content of the lawyer’s response.
Avoiding Bar Complaints
In short, you owe it to yourself to avoid a bar complaint. That doesn’t mean you should do anything unethical or inappropriate to prevent a bar complaint from being filed, but it does mean that you should do what you can to maintain a client’s confidence in your services. Most of all, that means keeping the client well-informed, responding promptly to the client’s inquiries, and explaining things fully along the way. More than anything else, a high level of communication with your client will prevent a bar complaint that may trigger a general inquiry into your conduct.
So what aspects of your conduct should you be most concerned about? Ethics seminars and CLE presentations often focus on “hot topics” or “hidden traps” in the field of legal ethics. But the reality is that most disciplinary cases involve ordinary, unremarkable issues about a lawyer’s diligence and responsiveness. Indeed, cases of that nature are so commonplace that they are often called cases of “garden variety neglect” in the parlance of disciplinary officials. They are also called “1.3/1.4” cases because they typically raise issues of diligence under Model Rule 1.3 and related issues of client communication under Model Rule 1.4. Violations of the two rules usually go hand in hand because a lack of diligence is accompanied by a lack of responsiveness to client inquiries.
Thus, while diligence and client communication may not seem to be interesting subjects, they are the first things you should consider if you want to avoid an ethical violation.
It is easy enough for anyone to say “be diligent” or “keep your clients informed,” and you should always strive to do so. But every lawyer knows that it is difficult to keep every case moving forward expeditiously and even more difficult to keep every client well informed all of the time. There will be times when you are simply not able to devote time and attention to a client’s case because of the competing demands of other cases and other clients. You should therefore adopt proactive measures that will help you preempt and prevent a misunderstanding with your client, even when you are busy with other matters.
In particular, you should maximize the opportunity that exists at the commencement of your employment. Always remember that your initial communications with a new client present a unique opportunity to establish a clear understanding about what the client should expect, including the fact that delays may occur along the way and that you will sometimes be unavailable. You should use your engagement letter not only as a contract of employment, but also as a teaching tool that helps the client understand what lies ahead. Likewise, you should use your initial meetings with a client as an opportunity to establish reasonable expectations. Experience shows that most clients will be impressed by an honest, candid explanation of what you can and cannot do and will be much more forgiving down the road when they have received that explanation at the outset.
Areas of Concern
What other aspects of your conduct should you be especially concerned about? The answer depends in part on your field of practice. Divorce lawyers are more vulnerable to allegations of conflicts of interest, criminal defense lawyers are more vulnerable to allegations of incompetent representation, and personal injury lawyers are more vulnerable to allegations of prejudicial neglect. Still, there are certain aspects of any law practice that deserve particular attention.
Chief among them is the lawyer’s trust account. There is an old saying among disciplinary lawyers that “the shortest path to disbarment runs through the trust account.” That continues to be true, as evidenced by disciplinary sanctions throughout the nation. The reasons are obvious. Misuse or misappropriation of trust funds reflects adversely on the integrity of the profession much more than “garden variety neglect” or an inadvertent violation of some other ethical obligation. It is also easily recognized, understood, and condemned by disciplinary decision makers, unlike some other allegations of unethical conduct (for example, some conflicts of interest). For all of these reasons, any failure to manage trust funds properly can have swift and serious consequences.
Experience also teaches that most disciplinary agencies have acquired sharp eyes for particular ethical violations that come to their attention on a recurring basis—for example, lawyers’ failure to comply with state court rules regarding the issuance of subpoenas. The result, as a practical matter, is that they review bar complaints with a “top ten” list of potential violations in their minds, either consciously or unconsciously.
The “top ten” list varies from one state to another, depending on the kinds of problems that have been the subject of recent appellate decisions, disciplinary orders, or advisory ethics opinions. You can discern some of the issues in your own state by reviewing ethics opinions issued during the past decade; by reading ethics articles in your state bar journal; and by attending CLE presentations by your state bar counsel. You will gain valuable insight not only about your ethical obligations, but also about the ethics issues that are receiving particular attention in your state.
It Could Happen to You
Finally, and most importantly, you should understand how ethical violations typically occur. Most lawyers can’t imagine that they will ever engage in unethical conduct—they simply can’t picture themselves doing the things they read about in public disciplinary orders. They fail to understand how those other lawyers got into trouble and how it could happen to them as well. It could be called “the undeniable truth of the eight un-words.” Here it is: Most “unethical” lawyers are ordinary people who became uninspired, unreliable, and un-productive after their lives became unhappy or unhealthy as a result of conditions that are, unfortunately, unremarkable.
It is a statistically proven principle. Time and time again, studies have shown that most ethical violations are directly related to substance abuse, depression, anxiety, career burnout, diminished energy or enthusiasm, loss of self-confidence or self-esteem, or a simple feeling of being overwhelmed. The ethical violations are merely a symptom of those conditions.
In other words, the ethical violation usually occurs in the later pages of the story. The whole story is what happened, over time, to a member of the bar who had the same dreams and aspirations as everyone else. The early chapters are filled with long days, impossible demands, unappreciative clients, and disappointed expectations. The middle chapters also may be punctuated by drinks or drugs, lack of exercise and recreation, dissolution of family relationships, and diminished devotion to religious and spiritual activities. Most lawyers can’t see themselves committing an ethical violation because they can’t foresee any of those other developments happening in their own lives. But those things do happen, with troubling regularity, as documented in every report on the state of our profession.
The moral of the story is unmistakable: If you want to avoid an ethical violation, your first order of business is to take care of your mental, physical, and spiritual health. Get your head on straight about why you are practicing law and what kind of rewards you should expect. Get some exercise and fresh air. Get the inspiration you need, wherever you may find it. Get a life beyond work—not in a tavern with other lawyers, but in your home, your place of worship, your children’s school, and other community activities. You will be a happier, more productive, and more ethical lawyer as a result.
Benjamin Cowgill practices in Lexington, Kentucky. His practice is limited to the field of legal ethics, including counseling and representing lawyers and applicants for admission to the bar in a wide variety of matters including disciplinary cases, disqualification proceedings, and character and fitness hearings. He may be reached at firstname.lastname@example.org.