The Five "C's" of Law Office Ethics

ETHICSTIPSThe Five “C’s” of Law Office Ethics:Communication, Conflicts,Confidentiality, Competence and Cashby Lynda C. Shely, Esq.1. CommunicationOne of the most frequent complaints about law offices istheir failure to communicate with clients, opposing counsel,and even with judges. Part of the communication problem arisesfrom a misunderstanding by clients about the lawyer’s availabilityto communicate; most clients believe a lawyer should bewaiting by the phone to answer their urgent questions – evensophisticated corporate clients assume that the lawyer is alwaysavailable. The reality is that a law office is handling hundreds ifnot thousands of client matters at any given time and thelawyers either are in meetings, in court, out of the state, oralready on the phone. So how does a law firm avoid some ofthe more common communication complaints? Here is achecklist of some practical suggestions:1) When you are declining a representation, send a declinationletter so that the non-client knows that they are a non-client.2) Law offices must communicate all substantive informationregarding the representation to clients, including, communicatingdiscovery requests, settlement offers, hearing dates, etc.3) This obligation also means that a law office should keepin touch with clients even when nothing is going on with theirmatter, just so that the client realizes that you have not forgottenabout them. The frequency of such contacts will depend uponthe length of inactivity – use your judgment and client relationskills to keep clients feeling like you still care about them.When lawyers must withdraw from a representation, thetwo most important ethical considerations are: 1) tell theclients; and 2) make the clients’ file available so that they mayhire other counsel. In most jurisdictions the clients’ “file” isclient property and under Rule of Professional Conduct1.16(d), the firm must give clients their files if it would“prejudice” the clients’ interests to hold the file hostage untilthe client satisfies the outstanding legal bills.2. ConflictsLaw firms must avoid conflicts. What constitutes a conflictand what constitutes a waivable conflict are topics for an entirearticle. Here are some brief reminders: every firm must have aconflict-checking system that includes former and currentclients. Always know who are firm clients (is it the husband andthe wife, is it the parent corporation and all subsidiaries, is itthe insurance company or the insured, etc.?). Never sue a currentclient. Never sue a former client on the same matter or useinformation against them. Never hire opposing counsel if youwant to continue on the conflicted case unless you obtain theclient’s consent; however, in most jurisdictions support stafffrom an opposing firm may be hired if they are effectivelyscreened from the conflict case. Never have intimate relationshipswith clients, opposing parties or opposing counsel. Mostimportantly – always trust your insides – if something feelswrong, contact your state’s ethics hotline or review ethics opinionsto “check it out” before proceeding.3. ConfidentialityLawyers frequently confuse the concepts of “attorneyclientprivilege” and “confidentiality.” They are very differentconcepts. “Confidentiality” under Model Rule of ProfessionalConduct 1.6 encompasses “all information related to the representation.”That’s really, really broad. That means that firmpersonnel should never discuss client matters, client names,client billing information, and client factual situations withANYONE outside of the firm unless authorized by one of theexceptions mentioned below. So, when in elevators, in courthousehallways, in restaurants, at parties, and in seminars, donot discuss firm client matters. Really. The few exceptions tothis broad prohibition pertain to disclosures that are requiredto represent the client so they are impliedly authorized, disclosuresto prevent the client from killing or seriously harmingsomeone (in some states), disclosures to prevent the client fromcommitting a crime (in some states), and disclosures necessaryto bring or defend a claim against a client.4. CompetenceA lawyer must be competent to handle a client matter.This is quantified in a number of ways and will require yourinput both for new clients and new client matters. First, thefirm must have the resources and time to handle the matter.For instance, if your lawyer decides to take on a class action30FACTS & FINDINGS / 2002 CAREER CHRONICLE

and there is only one secretary in the office and a file clerk, youshould chat with the lawyer about hiring additional temporarypersonnel, office equipment, and office space, (Lawyers mightnot always think of the practical realities). Second, lawyersmust have the legal knowledge to handle a matter. If you are alitigation legal assistant and your lawyer suddenly decides tofocus more on doing wills, you mightwant to suggest that the lawyer send youto some CLE courses to learn moreabout this substantive area. Finally,workload – everyone has too much butwhen you begin to feel that your desklooks more like a paper recyclingcenter than a law office, you musttell someone until he/she listen.This is true for lawyers and supportstaff. Manage your time efficientlyand know what the realisticlimits are on what can beaccomplished in a day. You arenot doing any clients anyfavors by taking on morethan you (or the lawyer) canhandle. Assess the workloadregularly andspeak up before itbecomes a crisis.5. CashDon’t let lawyersput you in charge ofthe checkbooks. Also,don’t assume responsibility for the accounting of the firmunless there is a lawyer who supervises everything. Lawyersmay delegate tasks but ultimately they are responsible for whatgoes on in a firm. The handling and documentation of moneyheld by a firm, particularly trust account money, is an ethicalobligation. Each state has very specific rules about how notyet-earnedmoney must be handled by law firms. Generally itmust be held in an interest-bearing trust account. Thoseaccounts must be reconciled each month, cross-checking thebank statement, checkbook register, and individual clientledgers. Assure that your lawyers understand what money issupposed to go into a firm trust account, what money is not togo into the account, how and when money can be withdrawn(for instance, in Arizona, a firm may only withdraw moneyfrom a trust account via paper checks – no wire orelectronic transfers) and how long youmust maintain the accounting records. Acommon mistake concerning disbursements:money cannot be disburseduntil that money actually is in theaccount – you cannot “borrow”another client’s money to pay ademanding client while their settlementcheck clears. It’s also advisablefor clients to understand these conceptsand as such, they may beincluded in the written engagementletter that all firms shouldbe giving to clients.These tips, unfortunately,cannot guarantee thatthe firm will notreceive a bar complaintbut they willgo a long way inassuring that you aretaking reasonablemeasures to try todo things ethically. If you have further questions, call yourstate bar for specific advice!Lynda C. Shely is an attorney licensed in Arizona, theDistrict of Columbia and Pennsylvania. She currently serves asDirector of Lawyer Ethics for the State Bar of Arizona.FACTS & FINDINGS / 2002 CAREER CHRONICLE 31