|
Young lawyers must train themselves to see the pitfalls
that lead inexorably to motions to disqualify, sanctions,
malpractice complaints and disciplinary proceedings. The
first step in this training is the development of a lawyer’s
sense of right and wrong. This is a special sense unique
to lawyers. There is no overstating the importance to
a lawyer of nurturing the capacity to foresee ethical
problems before they strike.
In developing the lawyer’s special sensory antennae,
a number of basic principles should be rehearsed and
followed.
The Whole Person Principle. Lawyers
are judged not only for their professional work and
activities as lawyers but for their behavior as members
of the general society, especially their behavior in
personal business transactions and in their sexual relations.
The key words are honesty and trustworthiness, and the
catch-all phrase “fitness as a lawyer.”
Lawyers have been sanctioned and even disbarred for
a variety of non-lawyer misdeeds, including the failure
to file an income tax return and sexual misconduct with
minors. As a lawyer, you will be under scrutiny for
everything you do, not only the things you do in your
practice.
A Client’s Money Is Always Off-Limits.
Most disciplinary proceedings involve a lawyer’s
misuse of client funds. Lawyers are often called upon
to act as escrow agents in real estate transactions
and regularly receive funds belonging to clients and
others. There are simply two inflexible rules: never,
never commingle your funds with funds belonging to anyone
else, including your client; and never, never use or
misappropriate funds that are not unmistakably your
own. Read and reread the disciplinary rules of your
jurisdiction governing special bank accounts for the
deposit of fiduciary funds. Learn the rules of the bank
you deal with to make sure you never write a challengeable
check. Learn the rules controlling IOLTA accounts to
guide you in choosing the right type of escrow account.
The first time you’re in a position to control
funds that don’t belong to you, talk to an experienced
lawyer and follow his advice on the proper steps to
take.
Never Procrastinate. A major source
of complaints against lawyers is the failure to pursue
or carry out the steps a client expects or that are
required to preserve the client’s rights and interests.
Every law suit and every business transaction has a
momentum of its own. The lawyer must be careful to maintain
that momentum, not to impede it. When a lawyer takes
on too many matters, or when a matter takes a turn the
lawyer has not anticipated, or when a lawyer is pressed
by personal problems, there is a natural tendency to
avoid or put off a particular client or a particular
matter. Letters and phone calls go unanswered. Filing
deadlines are skipped. Motions don’t get made.
Take my word – avoiding the client when the going
gets rough is certain trouble.
The World of Conflicts. Lawyers must
develop a heightened sense of the risks involved in
conflicts. Conflicts come in three essential forms:
1) a conflict between the lawyer and the client in a
business transaction between them; 2) a conflict between
a prospective or current client and a former client;
and 3) a conflict between a prospective or current client
and another current client. The most difficult conflict
to recognize and avoid is the conflict between lawyer
and client in a business transaction between them. In
some jurisdictions, a lawyer is simply enjoined from
acting as lawyer and broker in the same transaction.
Special rules usually apply when a lawyer seeks to acquire
literary or media rights with respect to a work which
is the subject of the representation. Learn the rules,
but, above all, learn to say NO when you have the slightest
doubt whether the next step is right for you.
Top
Lazar Emanuel is
a graduate of Harvard Law School. He is publisher of
the New York Professional Responsibility Report, a monthly
newsletter on Ethics and Professionalism and provider
of CLE credits for New York lawyers. He is the author
of Latin For Lawyers and of numerous study
aids for law students. He is also CEO of the Highlands
Company, publisher of the Highlands Ability Battery,
an online assessment of human abilities.
|
