How’d Santa Claus treat you this year? Did you get a new car, a big bonus or a granted motion for summary judgment? Or did you find only some new pens, a stack of legal pads and a proverbial lump of coal in your stocking?
Next year when Santa makes his list and checks it twice, consider these behaviors so you end up on the right one.
Naughty: Not Being Professional
The practice of law can be adversarial in nature. Lawyers can disagree with each other and, at times, take very different positions. However, as jurisdictions nationwide are renewing their emphasis on lawyer civility, it is important for lawyers to understand that there is a fine line between simply advocating for your client and, on the other hand, becoming consumed in the adversarial nature of the work. A shortcut to being on the “Naughty” list is treating opposing parties or counsel without the civility required by the profession.
In order to be admitted to practice law in most jurisdictions, lawyers typically take an oath of admission that contains pledges to conduct oneself with civility. In Georgia, for example, an admitted attorney swears that he or she “will truly and honestly, justly and uprightly conduct myself as a member of this learned profession and in accordance with the Georgia Rules of Professional Conduct, as an attorney and counselor.”
Examples of lawyers behaving badly routinely make the legal news. Some read about the lawyer in Florida who was suspended from the practice of law for two years for, among other things, repeatedly disparaging opposing counsel on numerous occasions both verbally and in writing. That lawyer criticized his opposing counsel’s motions as “laughable and scurrilous,” before renewing a pledge to continue aggressive behavior: “I look forward to litigating the issues you highlight and recovering the fees I bill my client from you PERSONALLY. I think I have never litigated with an attorney who is as disingenuous as you. This really is fun, and so from that standpoint, I thank you.”
Another lawyer in California is facing serious repercussions after sending emails to opposing counsel that used harsh language, provocative insults, and threats, including: “Haha. F*** you crooks. Eat a bowl of d***s.”
Attorneys who do not act in compliance with this oath—by engaging in name-calling, threats or other needlessly aggressive behavior—may find themselves not only with a lump of coal but also with a critique from a judge or the bar.
Nice: Maintaining Confidentiality
The confidentiality inherent in the attorney-client relationship contributes to the overall trust between lawyers and clients. Although many lawyers have familiarity with the protections of the attorney-client privilege, Rule 1.6, confidentiality is typically broader than the privilege. Rule 1.6 of the ABA Model Rules of Professional Conduct calls on lawyers to maintain in confidence all information gained in the professional relationship with a client, even after the client-lawyer relationship has terminated, unless the client gives informed consent or the disclosure is impliedly authorized.
There have been disciplinary cases around the country where lawyers have gotten in trouble for disclosing too much information online, whether in online review websites, blogs, Facebook posts or other electronic communications. As ABA Formal Opinion 480 notes, a lawyer may violate Rule 1.6 (a) “when a lawyer participates in public commentary that includes client information, if the lawyer has not secured the client’s informed consent or the disclosure is not otherwise impliedly authorized to carry out the representation.”
Notably, there is a broad range of conduct that may still be permissible under Rule 1.6’s protection of an attorney’s conduct that is “impliedly authorized.” Further, attorneys may be permitted to disclose information like client identities—which information is typically confidential—when those attorneys are lateraling to another firm and need to run conflicts.
Being aware of the obligation of confidentiality—and considering the parameters of the rules—can help attorneys stay on the “Nice” list.
Naughty: Not Treating Client Funds Properly
Rule 1.15 of the ABA Model Rules of Professional Conduct requires lawyers to hold funds and other client property that the lawyer possesses in connection with a representation separate from the lawyer’s own funds or other property. The rules have specific guidelines regarding the keeping of funds, management of accounts, safeguarding of property and record-keeping obligations.
The Rules are strict in this regard. The misuse of trust funds may result in an ethics charge against the lawyer with discipline as severe as disbarment.
Because the rules can be complicated, but the risks great, many attorneys will take steps to avoid violating the requirements of this rule or to take steps to minimize the risk of accidental violation.
Nice: Mentoring Others and Supporting Team Members
Under Rule 5.1, a law firm partner or managerial lawyer has an ethical duty to supervise junior lawyers. Beyond this ethical obligation to help ensure that junior lawyers are meeting the ethical standards of the profession, supervising lawyers also can help the next generation of practitioners by creating a supportive relationship through mentoring.
Mentorships between senior and more junior attorneys are often advantageous to both the mentor and mentee. Mentoring can promote long-term loyalty, job satisfaction and retention or development of professional skill in a mentee. Mentoring also can lead to better client services and the expansion of opportunities for those typically underrepresented in the legal profession.
We hope you are enjoying your holidays and that you make the “Nice” list in 2020!