My partner Matthew Conroy and I recently presented a continuing legal education seminar called Ethical Dos and Don’ts for Attorneys. That seminar is available online at Lawline. During the seminar, we covered a great deal of topics including the top five examples of attorney conduct that can lead to the filing of a grievance. Here they are:
1. Misuse of client funds:
As a lawyer, I encourage you to be very cautious regarding client funds. If the funds aren’t yours, don’t touch them unless you have an absolute right to them, typically for hours billed under an hourly fee agreement, assuming your jurisdiction allows you to take undisputed amounts of money. Even in this case, practice cautiously, obtaining client consent if possible.
Obtain and keep a record of writing from a client ,or whomever is entitled to the funds, authorizing and/or directing you as to what to do with the funds. If you’re able to demonstrate a good history with your escrow accounts and can show that the mistake was a clerical or bank related error, ordinarily you can avoid a potential problem with a grievance committee.
Another potential grievance can arise into escrow without the authorization from the payee, typically the client. Ensure you have the appropriate authority, either through a retainer agreement or other writing, to deposit money on behalf of clients or third parties into your escrow account.
2. Inattention to client matters:
This is another classic area that results in grievances. Every matter has a certain timetable. A documented failure to take timely action on behalf of a client in any particular matter can lead to a grievance. Ensure you have an appropriate diary system that reminds you of timelines, deadlines, and keeps an appropriate list of client matters that you or your firm represent. The system should be able to alert you to any “hot potatoes”—matters that have not received attention for a sufficient length of time.
3. Lack of communication:
Timely communication with your clients is essential. If you don’t know the answer to a client’s question, don’t avoid them because you haven’t had time to do the research. Call and explain what’s going on, and if you can’t provide nor engage, get another attorney to help you find the answer; inform the client of this. Don’t ignore the matter because it will only besmirch your reputation and could lead to a grievance.
4. Notary stamps:
Lawyers in New York can fill out a form, pay a fee, and automatically become notaries. The notary stamp is a dangerous tool in the hands of a lawyer, however, if not used properly. Don’t do your clients or anybody else any “favors” and notarize a signature on their behalf when they are not in your presence. This can get you in trouble.
If you’re going to notarize something that will be sworn to in the form of an affidavit, pleading, or something else in court, understand that you may be charged with all of the knowledge contained in the document, by virtue of your decision to notarize and swear to the signature on that document. For this reason, I would caution lawyers to make sure that their i’s are dotted and t’s are crossed when notarizing that kind of a document on behalf of a client. As a general rule, I would suggest that you avoid the problem by having someone else notarize those documents.
5. Communicating with a client who’s represented by another lawyer:
We know the rule—don’t talk to a client who’s represented by opposing counsel. Nevertheless, sometimes things happen; an opposing client calls to confirm a meeting or to ask if you received what they sent to your office. Whether by accident or happenstance, you may communicate with a client who is represented by opposing counsel. Should this happen, the most important thing to do is to document that you received a call from the client, what the nature of the communication was, and then to convey the occurrence to the counsel who represents the client.
If you’re not clear whether the client is represented by counsel, document the conversation with the client and include that they had not advised whether they had counsel or not. If you document everything and instruct your staff that any communications can only be of the most basic nature, you should be able to avoid any problems or potential grievances.
This is not an exhaustive list. In day-to-day operations, any number of ethical questions may arise. The best way to be sure that you do the right thing is to contact an attorney who has the experience and expertise to guide you through your unique ethical dilemmas.
Remember to practice with common sense and an appropriate abundance of caution, but not to practice in fear. If you have any questions, don’t hesitate to contact me.
Evan S. Schwartz
Founder of Schwartz, Conroy & Hack