As the complexity of the law – and law practice – has become greater, not to mention more competitive, the ethical rules surrounding the law have become more complex also.
The ABA Journal records the top 10 ethics traps, drawing upon the expertise of Professor Stephen GIllers, who teaches ethics at New York University Law School, who is quoted in the Journal – ““If you think it’s just about the basics, you’re on the road to perdition.”
Among the top 10 – “stumbling” into a lawyer/client relationship or being vague about whether such a relationship exists or not, potentially with disastrous consequences.
Several of the traps however relate to communications and advertising. Knowing the marketing and advertising rules of State Bar Associations and keeping to the rules may appear obvious, but it is one area many lawyers fall foul of. But communicating with clients, or failure to do so properly, is another key ‘fail’.
One way to protect the attorney-client privilege is to add the “attorney-client privileged” label to all communications we think are privileged. Of course, most of us automatically label every e-mail we send that way, just to make sure. Even the order to the deli for five corned beef sandwiches with Russian dressing. If you really want to protect an e-mail, don’t rely on the automatic legend. Label the message itself. Then a judge will know you actually thought about it.
And one of the biggest ethical basket-case issues involves firm breakups and the question of ‘who gets the kids’ – ie clients.
Rule 1.4 requires that a lawyer keep the client reasonably informed about the status of the matter, but ethics opinions at the state level differ on whether a lawyer is obligated to inform clients that he or she is leaving the firm.
There is no prohibition in the ABA Model Rules against a departing lawyer advising clients that he or she intends to leave the firm. The nature of the communication is the major concern.
Among the others –
- The ‘boss made me do it’ defence to misstatements or misreporting
- Failing to communicate with clients, which is more than just returning phone calls
- Becoming commercially involved with clients, which increases the lawyer’s obligations to the client/business partner
- Being ignorant of the ethical issues, which means becoming familiar with the law
- Fee agreement traps that can ensnare lawyers who fail to take care to explain them properly
- Terminating the client/lawyer relationship, which means crystal clarity.
A fantastic read….very literate and informative. Many thanks
Communicating ethically is an important part in the lawyer world. This is hard for some people because of the lack of awareness of how to communicate ethically. A German philosopher, Jürgen Habermas expands on ethics in communication and identifies four basic assumptions that all participants must assume during human communication. The first being “participants assume that all statements made are capable of being comprehended”. The second assumption is “that the statements are true representations of existing, agreed upon, factual states of affairs”. Third, “assume that statements sincerely and accurately reflect the actual intentions of others”. And lastly, “assume that statements are appropriate”.
This applies in this article because lawyers should always speak to their clients using dialogue that their clients can understand (don’t use lawyer jargon). Also, the information that lawyers give to their clients should be facts or information based on the rules like talked about in the article. Keeping things sincere and accurately reflecting actual intentions would fit well for the piece of the article talking about telling clients if a lawyer plans on leaving their current company. It is ethical to keep their client in mind whenever making decisions, and sharing their decision is crucial in building a trusting lawyer/client relationship. When the article talks about lawyer/client relationships being iffy, and how lawyers should tag their own emails to keep things professional, that is to make sure the information lawyers are communicating are appropriate.
Johannesen, R. L., Valde, K.S., & Whedbee, K.E. (2008). Ethics in Human Communication. Long Grove, IL: Waveland Press.