Top ethics traps for lawyers

Ethical considerations relative to advertising, attorney-client privilege, subordinate lawyers and fee agreements were among the topics covered in a free CLE, “The Top Ethics Traps for Lawyers,” an ABA Connection program.

Trap: Lawyer advertising
Questions of acceptable lawyer advertising are more prevalent than ever because of the Internet. “Marketing issues are extremely tricky and rules applying to advertising generally lag 20 years behind,” said Diane Karpman, legal ethics expert, who has counseled lawyers and law firms for two decades. Advertising rules were designed for print media and each state has its own regulations. States have different retention policies, label requirements and even rules for type size, explained Karpman in a November 2007 ABA Journal article that complements the educational session. “Comply with your home state’s regulations,” she advised. “Include whatever disclaimers should appear. It’s a good idea to state that the ad does not create an attorney-client relationship or protect any confidential information until a written agreement is signed.”

Trap: The lawyer-client relationship
Michael Downey, partner at Hinshaw & Culbertson LLP, who led the program, stressed that very little is required to establish a lawyer-client relationship. “If a person asks a legal question, and a lawyer answers or says he or she will look into it, a lawyer-client relationship may result.There’s no need to sign an agreement, shake hands, discuss rates or send an engagement letter,” Downey wrote in the same ABA Journal article. Further, Downey pointed out, “ABA Model Rule 1.10, an inadvertent client relationship imputes to the lawyer’s firm, not just to the lawyer.”

Trap: The subordinate lawyer
Subordinate lawyers need to do more than just refuse to comply with unethical directives from a supervisor. Model Rule 8.3 dictates that the subordinate report the supervisor to an appropriate disciplinary agency. Panelist Eileen Libby, associate ethics counsel for the ABA Center of Professional Responsibility, summarized how Model Rules 5.1 and 5.2, in addition to 8.3, relate to subordinate lawyers. Rule 5.2, said Libby, imposes affirmative responsibility on the subordinate. That lawyer can't just say, “I was just following orders.”

Among other topics covered were ethical considerations in business transactions and when leaving one's law firm.

The ABA Connection program was sponsored by the Center for Professional Responsibility, Young Lawyers Division, Section of Litigation, Tort Trial and Insurance Practice Section, Section of Business Law, ABA Journal and the Center for CLE.

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