By Mary Lou Floyd, CCLS, Legal Specialization Sections Coordinator &
Lynne Prescott, CCLS, LPI Executive Advisor
LPI’s recent Day of Education focused on the topic of ethics in the legal profession, a subject paramount to the practice of law for both attorneys and support staff. Here, we provide the highlights of each of the presentations.
Ethics: Review of the Rules of Professional Conduct
This seminar was presented in two parts.
Part 1 included an overview of the history of the California Rules of Professional Conduct.
Chapter 1 is one of the most important chapters.
Rule 1.1 – Competence. This rule discusses the attorney’s obligation to be competent in his/her representation of a client. An attorney’s life events can hamper his/her ability to competently represent a client. Similarly, an overburdened attorney can also fail to competently represent a client. If an attorney is not skilled to handle a certain matter, the matter should be referred out. A more positive resolution, so that attorney can learn and gain skills in handling other types of matters, is entering into a co-counsel arrangement with an attorney who can help the teach and guide the other attorney. Attending CLE classes can also help the attorney learn and gain skills to handle other types of matters. Otherwise, the attorney should refer the case out.
Rule 1.3 – Diligence. This is a new rule. An attorney has an obligation not to unduly delay a legal matter. Can be intentional with no legal justification or can be due to an attorney’s anxiety, addiction, or depression.
Rule 1.4 – Communication with Clients. The top complaint to the State Bar is that a lawyer is not communicating or adequately communicating with a client. The client feels abandoned or uninformed of certain risks or events. Knowing what the client expects can help everyone keep the client informed. This is one of the areas where support staff can be of great assistance to the attorney by providing the client with copies of significant pleadings and informing the client of significant developments.
Rule 1.4.1 – Communicating Settlement Offers. Rule 1.4.1(a)(1) is specific to criminal matters. Rule 1.4.1(a)(2) is for all other matters. The primary issue that can arise from not communicating settlement offers to clients is legal malpractice.
Rule 1.4.2 – Disclosure of Professional Liability Insurance. The law firm’s engagement letters should contain a clause informing the client whether the law firm has Professional Liability Insurance. If you discontinue coverage, the client must be informed in writing of this change within 30 days. Professional Liability Insurance is not required but whether you have it or not must be disclosed to the client.
Rule 1.5 – Fees for Legal Services. Always provide the client with invoices, ensure the correct hourly rates are shown, and that the invoices are promptly paid by the client. If not paid, and fees owed to the firm continue to increase, it becomes harder for the client to pay. Fees must not be unconscionable or illegal. Rule 1.5.(c) states contingency fees are not allowed for family law or criminal matters. Rule 1.5.(e) discusses flat fees.
A review of the legal services agreement or engagement letter may be necessary to ensure compliance with Rules 1.4.2 and 1.5. Business and Professions Code section 6147 contains the information for a contingency fee agreement. Business and Professions Code section 6148 contains the information for an hourly fee agreement.
Rule 1.5.1 – Fee Division Among Lawyers. There must always be a written agreement. Even if the agreement is regarding referral fees, it must be in writing.
Part 2 of the presentation covered practical ways support staff can help lawyers.
Rule 1.6 – Confidential Information of Client. California has the strictest rules regarding confidentiality. Public figures and celebrities may be the first reason that comes to mind. However, incapacitated and disabled clients are also included. In protecting an incapacitated or disabled client, an attorney may inadvertently reveal information about the incapacity or disability that should not have been revealed. Exceptions are to prevent death or substantial bodily harm. The breach of confidentiality can occur when an attorney or legal support staff discuss the client or the client’s matter at a party or with family members.
Rule 1.8.6 – Compensation from One Other Than Client. This refers to receiving payment from someone other than the client. The engagement letter should provide specifics as to who is paying the fees and it must be signed by all parties.
Rule 1.8.10 – Sexual Relations with Current Client. This rule prohibits the attorney from having a sexual relationship with a current client. If you suspect such a relationship, report it. It must be addressed.
Rule 1.15 – Safekeeping Funds and Property of Client and Other Persons. Trust accounting is a lot more stringent. The State Bar Client Trust Account Protection Program (CTAPP) goes into effect January 1, 2023. An attorney must register the account and make statements of compliance.
Rule 1.16 – Declining or Terminating Representation. Circumstances when an attorney may have to decline or terminate representation include not being competent to provide the services or withdrawing if client is not paying (this is permissive). The client file should be returned along with any unused funds, but the client must request the file. Things to include are documents necessary for the client to continue the case. Work product such as notes, internal emails, research, and internal memos do not have to be provided.
Rule 3.1 – Meritorious Claims and Contentions. A lawyer should not bring a bring an action that can be harassing or malicious, or not warranted under the law. No reasonable attorney would do it.
Rule 3.3 – Candor Toward the Tribunal. A lawyer and staff must take meticulous care that no false statement is made to the tribunal. Such a false statement must be disclosed when it is discovered it was false. The attorney may have believed a statement to be true at the time, then learns through confidential communication with the client that the statement isn’t true. The attorney has to get the client to agree to disclose the truth. This can create a balancing account regarding confidentiality.
Rule 3.7 – Lawyer as Witness. The attorney must obtain informed consent from the client, signed document, that the client has been informed the attorney will now be a witness in the matter.
Rule 4.2 – Communication with a Represented Person. If you suspect a person is represented, you should not communicate with them directly or indirectly. Legal support staff can use the following statement when communicating with a person who may already be represented by an attorney: “Please advise if you are represented by counsel.”
Rule 4.4 – Duties Concerning Inadvertently Transmitted Writings. This occurs usually in document productions. The other side has inadvertently sent you privileged documents. It is your obligation to refrain from looking at the document and promptly notify your supervising attorney. If it’s an email, such as one sent to opposing counsel instead of a client, notify the sender immediately and delete it. If you do not handle this properly, it could result in disqualification of the law firm. Risk management tip: do not use auto fill, take a moment to look at the email before sending it – check for similar email addresses, and overall be careful.
Rule 5.1 pertains to the responsibilities of managerial and supervisory attorneys. Rule 5.2 pertains to the responsibilities of subordinate attorneys.
Rule 5.1 is generally about any lawyer. They must ensure all staff are in compliance with the Rules of Professional Conduct and the State Bar Act. Legal support staff can help in this area by ensuring caseloads are balanced for all attorneys and making lists for easier supervision. Also, by ensuring the firm conducts regular training on the Rules of Professional Conduct to ensure compliance.
Rule 5.3 – Responsibilities Regarding Nonlawyer Assistants. This is for legal support staff. The managing or supervising attorney must ensure all legal support staff are informed of and compatible with the professional rules of conduct. Sending support staff to seminars, such as the ones conducted by LPI, can help ensure everyone is compliant. A lawyer is responsible for the staff’s conduct and the attorney can be disciplined.
Rule 5.4 – Financial and Similar Arrangements with Nonlawyers. In California, legal support staff cannot be paid a referral fee. Legal support staff cannot have an alternate business structure to receive legal fees nor to hold an ownership interest in a law firm. Of interest, Utah, Washington D.C., and Arizona do allow such arrangements to ensure more resources and access to justice. Other states are watching those states closely and considering similar rules.
Rule 5.6 – Restrictions on a Lawyer’s Right to Practice. A settlement agreement or settlement terms cannot contain clauses that state the attorney cannot ever sue the client in another matter nor that he/she cannot practice in a particular area of law. The terms cannot prohibit the legal services the attorney can perform.
Rule 8.4.1 – Prohibited Discrimination, Harassment and Retaliation. This one is brand new. This applies internally in the law firm and for clients. The alleged victim has to file a civil lawsuit or file a complaint with the Department of Fair Employment and Housing or the Equal Employment Opportunity Commission. Discrimination is prohibited against protected characteristics and 8.4.1.(c) lists those characteristics. Internally, harassment or retaliation against an employee is not permitted.
Categorized in: Legal Procedure
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