Diagnosing and treating ethical dilemmas at your solo or small firm

With law firms of five or fewer lawyers accounting for more than 65 percent of malpractice claims, small firm practitioners must be especially mindful of ethical dilemmas and malpractice errors. The General Practice, Solo and Small Firm Division presented a recent ABA continuing legal education teleconference where a diverse group of panelists, including Wendy Inge and Tim Gephart of the Minnesota Lawyers Mutual Insurance Company, and Richard J. Thomas of Burke and Thomas PLLP, addressed early diagnosis and treatment of ethical dilemmas to prevent chronic client complaints and resulting malpractice charges.

Through the examination of two real malpractice claims, the panelists gave teleconference attendees tips on avoiding malpractice errors and various ethical dilemmas, including multijurisdictional practice, conflicts of interest, missed deadlines, outsourcing and fee disputes.

Inge, director of risk management programming at MLMIC, noted the importance of practicing within one's jurisdiction. While ABA Model Rule 5.5 has been amended to allow lawyers to practice in any jurisdiction on a temporary basis, so long as the services are related to the lawyer's practice in the jurisdiction where they are admitted, Model Rule 8.5 clarifies that both the lawyer's admitting state and the state where the services are rendered have the ability to discipline the lawyer for conduct in the non-admitting jurisdiction. Sometimes, noted Gephart, vice president of claims at MLMIC, providing your clients with the best service possible means referring them to someone else.

Currently, 24 states have adopted these revisions to the Model Rules, including California, Georgia, and Illinois, some with their own interpretations of the rules. For instance, Colorado's version of Rule 5.5 is particularly permissive: Anything goes as long as the out-of-state lawyer does not establish a domicile or open an office in Colorado. At the other extreme, Connecticut has nixed the idea of allowing lawyers who are licensed in other jurisdictions to engage in temporary practice in the state.

Some of the other topics explored in the program included outsourcing and unauthorized practice of law, fee disputes, collaborative law, and blogging. The program was sponsored by the General Practice, Solo and Small Firms Division. Some of the materials from the program will be available here [PDF] until at least mid-October. The complete program is available through the ABA WebStore.

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