Over at the Legal Profession Blog, Prof. Mike Frisch, of Georgetown Law Center, has posted a good list of ways to stay out of ethics trouble and avoid disciplinary complaints. Several of his points resonated with me — part of my work in “Ethics World” involves dealing with bar grievances filed against lawyers, and our committee sees some of these issues repeatedly.
Communicate, communicate, communicate
Lack of communication is the probably biggest factor that leads to disciplinary complaints. Not returning calls; not sending written updates; not providing clients copies of pleadings, deal documents, and correspondence — all of these are bad practice and can get you in trouble. Clients will be understanding if you respond to a question with a timely e-mail saying “I’m tied up today, but I will get back to you with an answer on that tomorrow.” What drives clients crazy (and potentially drives them to the internet in search of a bar complaint form), is a lack of any timely response.
Frisch makes the additional point that “[Just] as many complaints arise from a bad bedside matter as a bad law practice … [P]lenty of marginally competent lawyers … never get complaints because their clients like them.”
Another way of saying this is that if you are a good communicator, your client may give you the benefit of the doubt when the occasion arises — something that every person needs and wants. If you have a busy practice — maybe a volume business — and think that you don’t have time to communicate with your clients as a matter progresses, you’re being shortsighted.
Keep the client’s expectations reasonable
This is obviously related to the point about communicating. Frisch notes that keeping your client’s expectations within reasonable bounds “can be tough in practice,” and says that unreasonable expectations “may be unavoidable to some extent.” But I think that you’re not doing your job of managing these expectations unless you are communicating and teaching the client about the legal process, the likely realistic value of the case, what to expect in terms of a timeline. Again, think you don’t have time to do that? Think about the time and trouble that a bar grievance will impose on you, even if you are exonerated. Still want to gamble?
Tend to your bookeeping
Know what the rules are in your jurisdiction with respect to escrowing advance fees, keeping a ledger, refunding unearned payments, and all the other ins and outs of handling money that belongs to your client or other people. Follow those rules to a “T.” Never take money for work you cannot or are not going to do.
I agree with Frisch that across jurisdictions, violations of financial rules are considered among the most serious that a lawyer can face. In my state, Ohio, the state supreme court has a standard pronouncement that appears in every one of the most serious such cases, in which it is held that client funds have been misappropriated: “We have consistently recognized that the presumptive disciplinary sanction for misappropriation of client funds is disbarment.” See, e.g., Stark Cty. Bar Ass’n v. Williams (finding pattern of serious misuse of escrow account and misappropriation of client funds, dishonesty and neglect). See also In re Beck (S.C. June 10, 2015) (disbarring lawyer who self-reported 11 years of misconduct regarding client trust account, including misusing client funds and inability to track funds due to bookkeeping failures).
Do the right thing
Besides the above, there are plenty of other things that go into being an ethical lawyer. But by consistently executing on the basics, you’ll go a long way towards staying out of disciplinary trouble.