Lawyers must comply with their states’ versions of the Model Rules of Professional Conduct (Rules), the ethics rules that govern how we handle clients and their matters and how we address confidentiality, staff, technology and cybersecurity, IOLTA/trust accounts, and more. But the Rules are not always clear and, in areas like technology, were written before technology was even a “thing.”
There is often the perception that the ethics rules focus more on issues that large firms face. While the Rules do apply equally to all attorneys, and not to firms, there remains the belief that Rules are written by lawyers in large firms and do not address issues other lawyers face. What is clear based upon my experience representing attorneys, however, is that solo, small- and mid-sized firm lawyers are disciplined in a disproportionate percentage when compared with large firm attorneys. Why? Because in many cases the lawyers subject to discipline do not have the guidance or resources available in large firms and they fail to seek counsel until later in the disciplinary process.
Large law firms often have internal general counsel, and many even have ethics counsel, whose primary role is to handle any ethical issues the firms and their lawyers face. Thus, when larger firm lawyers have ethical problems or concerns, or hear from disciplinary counsel, they can turn to their firms’ internal resources to address the issues. As a result, they are able to head off many, if not most, of the issues that arise.
Lawyers who practice solo, or in smaller firms, do not have the same safety nets. They are also often preoccupied with other concerns, such as handling clients, generating business, and all the other items they must juggle, including:
• Running the office;
• Managing the firm’s information technology, website, client files storage, email, and cybersecurity;
• Hiring, firing, and supervising paralegals, legal assistants, outside vendors, co-counsel, and contract attorneys;
• Engaging in client development and advertising/marketing;
• Managing or overseeing IOLTA/trust accounts; and
• Addressing conflicts of interest.
Compare that list with the lifestyle of larger firm lawyers, who typically do not handle or know about their firms’ IOLTA and other trust accounts, leases, purchases of equipment and office supplies, or the other administrative tasks that solos and small firm lawyers do as a matter of course. That is why, when our firm sees a cover letter addressed to the Hiring Partner, we smile, knowing that the Hiring Partner also takes out the trash.
This also means that disciplinary issues do not always receive the prompt attention they should or that, absent the in-house safety nets, lawyers do not recognize the potential severity of disregarding or minimizing notices from disciplinary counsel.
Fortunately, there are many proactive steps lawyers can take to avoid disciplinary hot water. This article will outline nine key areas that can proactively help all lawyers, especially those in solo, small- and midsized firms, avoid being the subject of and having to respond to disciplinary inquiries.
- Read and know the rules of professional conduct
“Read the Rules” is a mantra every attorney should know, and it means more than reading the Rules of Professional Conduct that apply in every state in which you practice. It also means reading the Rules that apply in all of your matters and understanding all the guidelines that apply to professional conduct. At its core, knowing the rules is the minimum competence standard set forth in Rule 1.1.
Thus, if you handle litigation, you also need to read and comply with the relevant Rules of Civil Procedure. Otherwise, a violation such as missing a filing deadline and having a matter dismissed could lead to discipline. Similarly, lawyers with family matters need to recognize the parameters that apply so that they avoid sinking to the depths that some of their clients do in the heat of the moment. In short, knowing the rules—all of them, not just the ethics rules— can help avoid having to hire counsel and explain your missteps.
In addition, many lawyers are licensed in more than one state. For those attorneys, when the ethics rules differ between the states where they are licensed, the best practice is to comply with the most restrictive or detailed rules so that your conduct meets the requirements of every state.
Consider two examples. The IOLTA account rules (typically Rule 1.15) differ in every state, and even the definition of IOLTA funds differs from state to state. Similarly, the advertising Rules (typically Rules 7.1, 7.2 and 7.3) are not consistent from state to state, and they are changing. So not only must you follow and know the Rules, you should also stay abreast of any changes.
CLICK HERE to read the full article, which was originally published in ALI CLE’s The Practical Lawyer.