This post was written by Megan Zavieh and originally published on Lawyerist.com on June 4, 2014.
Since state bar disciplinary authorities do not always issue statistics on ethics violations, I am hesitant to proclaim this a list of the most-common reasons lawyers find themselves in ethical trouble. However, the following rules are certainly among the most commonly violated.
Rule 1.1 ― Competence
A lawyer shall provide competent representation to a client. Competent representation requires the knowledge, skill, thoroughness and preparation reasonably necessary for the representation. [ABA Model Rules 1.1]
The very first rule, adopted in some form in every state, seems simple enough: we must competently represent our clients. The trouble is, just about any time a client complains about our substantive work, a charge of failing to perform with competence becomes likely. Even if you truly did act appropriately, you might get accused of incompetence.
One reason failure to perform with competence is overcharged is that state bar prosecutors often fail to understand the private practice of law. For example, I know an attorney who negotiated for months with the opposing party before ultimately filing the client’s lawsuit, as all the pre-filing negotiation was geared toward settling the matter without resorting to litigation. The state bar threatened a charge of failure to perform with competence because the case was not immediately filed.
On the other hand, a charge of failure to perform with competence can merit. Recently, I observed an attorney come to court an hour late for a trial. When he arrived, he knew nothing about the case he was supposed to try. If his client had actually been there to see him, that client could well have lodged a complaint with the state bar, and a failure to perform with competence charge would have been appropriate.
Keep in mind the duty to perform competently ― and all of its component parts. It not only means you must know your area of law, but also that you must prepare for each and every thing you do. You must never show up to a meeting, conference, or court date unprepared.
Rule 1.2 ― Diligence
A lawyer shall act with reasonable diligence and promptness in representing a client. [ABA Model Rule 1.3]
Like competence, diligence seems simple enough. Yet, with busy schedules and unwieldy caseloads, many lawyers aren’t performing with the diligence our clients (and the regulators) expect.
Diligence means staying organized in order to meet all deadlines, following through on all potential legal theories, doing what is necessary to run down possible avenues for your client, and not “dropping the ball” on any client needs.
Rule 1.7 ― Conflict of Interest: Current Clients
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. [ABA Model Rule 1.7]
The competence rules on conflicts (including paragraph (b) referred to above) are quite lengthy as far as the model rules are concerned, but the concept itself is not complicated. Do not represent a party adverse to current clients.
The trouble rarely comes because you represented an obviously adverse party. Instead, it comes because you took on a conflicting representation without knowing it.
Clients can waive conflicts, but only if you follow the rules for obtaining proper consent. Rule 1.7(b) says that if an exception to the conflict exists, a client may consent to the representation only if “(4) each affected client gives informed consent, confirmed in writing.”
This does not mean the client initials a broad waiver in the retainer agreement. Many states have specific requirements, but in all states, you must actually discuss the matter with clients and suggests that they seek counsel on the conflict waiver before signing it.
These commonly violated rules are probably the first three you learned in your professional responsibility class in law school. Yet they remain some of the most frequently charged. So how can you avoid trouble?
There are many ways to answer this question, but the best tip is simply to get organized. Know who your clients and their adversaries are by maintaining an up-to-date contacts database, and use a solid conflict-checking system. Get your calendar in order so you never miss a deadline. Stay ahead of the game and don’t get overwhelmed by your obligations so that you are always putting out fires instead of working strategically. And keep abreast of the rules in your state, especially those related to conflicts and waivers.