A Guideline to Legal Ethics
Ethics are a cornerstone of legal practice. An ethical breach can prove to be the end the relationship between a legal practitioner and their client, or it can even result in the suspension or disbarment of the legal professional responsible for the violation. Ethics also define the relationship between a lawyer and the judicial system, as well as the clients they serve.
Legal professionals are required by the formal rules of their profession to maintain a high standard of ethics—this is also expected by the average client . Essentially, ethics outline the nature of a lawyer’s responsibilities to their client and the law. Ethics dictate that, on top of acting in your best interests, your lawyer must also keep your information confidential and maintain a level of objectivity when advising you. Ethics also carry implications for the way in which lawyers approach other individuals in the course of their legal practice, especially members of the judicial system.
Identifying Conflicts of Interest in Legal Practice
Understanding conflicts of interest is an essential element to defining and respecting the standard of care of the law. Conflicts of interest can occur without any wrongdoing on behalf of a legal professional and can still result in substantial and irreparable injury to the client. Some common examples of a potential conflict of interest may include:
- Representing more than one client in the same or substantially related matters where their interests are materially adverse;
- Representing more than one party to an aggregate settlement or other aggregate arrangement;
- Using information obtained in the course of the representation to the disadvantage of a current client unless the client gives informed consent; or
- Using information obtained in the course of a representation to the disadvantage of a former client after a reasonable opportunity to have represented such client concerning the information. It is important to note that not every situation where a conflict arises will result in a breach of the standard of care. The key determining factor in resolving a conflict of interest is whether the Client was prejudiced in the result. In other words, would a reasonable lawyer have acted differently in the same situation? If the answer is no, it is likely the law firm will not be found to have breached the standard of care.
Confidentiality Duties
The ethical duty of confidentiality prohibits a lawyer from disclosing information related to the representation of a client unless this information is otherwise subject to another rule that permits or requires disclosure. Specifically, Rule 1.6(a) of the Model Rules of Professional Responsibility provides: "A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized to carry out the representation, or the disclosure is permitted by [a] paragraph [b] or [c]." Unfortunately, too many lawyers don’t keep their clients’ secrets and, therefore, violate this ethical duty of confidentiality.
There are many examples of lawyers violating their duty of confidentiality, one of which involves an attorney client email in which a lawyer admitted to a client (either at the trial level or on appeal) that she was under the influence of Oxycontin when a significant motion was filed, which caused a default judgment to be entered against the client. This breach of a client’s confidence is a clear violation of the duty of confidentiality, and the attorney would certainly be subject to professional discipline.
Another example would be a lawyer publishing the intimate facts of a client’s divorce on a blog without the client’s knowledge or permission. This is also a clear violation of the ethical rules and could result in professional discipline, such as censure, suspension, or being barred from the practice of law.
Moreover, there are sometimes exceptions to the obligation of confidentiality. For example, Rule 1.6(b)(2) permits disclosure if the lawyer reasonably believes such disclosure is impliedly authorized to carry out the representation.
Rule 1.6(b)(3) permits disclosure when the lawyer reasonably believes it is necessary to prevent reasonably certain death or substantial bodily harm. And, Rule 1.6(b)(4) permits disclosure when the lawyer reasonably believes disclosure is necessary to prevent the client from committing a crime or a fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and the client has used or is using the lawyer’s services in furtherance of the crime or fraud. There are additional exceptions as well, but these are the most common.
The point is that lawyers should keep their clients’ secrets, regardless of the jurisdiction. A breach of confidentiality may rise to the level of violating criminal law (the theft of contents of, or destruction of, a client file), and/or result in professional discipline (censure, suspension, or disbarment from the practice of law). The latter is usually the result of negligence in practice rather than a knowing and intentional breach of the duty of confidentiality.
And, as we know from the ABA Model Rules of Professional Responsibility, a violation of ethics rules typically is the basis for civil liability in the form of a malpractice claim. Therefore, if a lawyer violates the duty of confidentiality and, as a result, harms a client, the client sometimes may have a legal remedy.
The Privilege Governing Client Privacy
Client-attorney privilege is a rule to protect confidences between a lawyer and the client that tends to encourage full and frank communication by the client with the lawyer, which will promote broader public interests in the observance of the law and the administration of justice. (DR 4-101). The client-attorney privilege starts on the threshold when the prospective client consults with a lawyer in his or her professional capacity. The privilege requires a communication and not merely the evidence of a communication. A communication may be testimony of witnesses or letters and correspondence introduced into evidence. The laws of ethics no longer require that confidences be those of a legal nature. Such confidences may now be pertinent to another profession or to a non-professional matter, if disclosure of the communication might be harmful to the client. The client does not necessarily have to be in trouble with the law, yet the privilege remains to apply. The key here is that the client does not want the information to be disclosed, and does not give permission for the information to be disclosed. The primary aspect is the control of the communication. Therefore, to benefit from this privilege, the client must assert the privilege. But, even so, there are exceptions to the privilege: These exceptions are important to both the lawyer and the client, and care must be exercised when deciding what the strategy should be because even if the privilege applies, it is not absolute and is subject to waiver. (DR 4-101).
Billing Practices and Its Surrounding Ethical Concerns
In the realm of law practice management, ethical considerations in billing practices can be thorny. On the one hand, a law firm must seek to be fairly compensated for the work performed on a client’s behalf, but on the other hand the firm must also ensure that its billing practices are transparent to its clients and do not "push the envelope" too far in regards to the amount of time being billed for specific activities. After all, there’s nothing worse than having a judge look at a bill and quickly deduct hours because they appear to be excessive for the tasks being described. Accordingly, it’s very important for any legal professional to be aware of the ethical considerations in legal billing and follow best practices.
Transparency and Fairness
First and foremost, all legal professionals need to be aware of the fact that the American Bar Association’s Model Rules of Professional Conduct are quite clear in regards to a lawyer’s ethical obligation to ensure that the law firm’s fees are not only reasonable, but also clear and upfront. In this regard, the Model Rules dictate that:
A lawyer’s fee and expenses shall be reasonable. A fee is unreasonable if the particular facts and circumstances are such that the purchaser reasonably believes that the amount of the fee is a product of the factors that a reasonable buyer and seller would consider. Factors to be considered include the time, labor and skill required to perform the services; the novelty, complexity and uniqueness of the services performed; the cost of the services the amount involved and the results obtained; the time limitations imposed by the client or by the circumstances; the nature and length of the professional relationship with the client; the experience , reputation and ability of the lawyer or lawyers performing the services; the experience, reputation and ability of the lawyer or lawyers performing the services; the expertise of the lawyer performing the services; the nature and length of the professional relationship with the client; the experience reputation and ability of the lawyer performing the services; the cost of providing the services; and the clients ability to pay the fees.
Simply put, all the relevant factors including a lawyer’s experience, the costs of practicing law in a particular market, the difficulty of a case as well as the actual results obtained for a client should all be considered when determining what constituted the "reasonable" legal fee for that particular matter.
The Potential for Overbilling
Although many lawyers and law firms are very careful to avoid overbiling clients with their legal bills, overbilling is still something that has a very real possibility of arising if lawyers aren’t 100% focused on the task at hand and paying close attention to the clock. While most lawyers set a single hourly rate for their services, senior lawyers oftentimes bill at a higher rate than junior lawyers to account for the fact that they will likely be more familiar with a particular area of the law and more effective at immediately identifying what needs to be done in a specific case and then performing those tasks in the most efficient manner possible. We therefore recommend that law firms use advanced law practice management software that makes tracking time performed for a client quick and easy so that no lawyer ever has to guess at how much time he performed on a particular matter.
Legal Advertising and Its Ethical Implications
The ethical landscape for legal services advertising is necessarily different from the general allowable contours for other kinds of business marketing. For instance, in New Jersey, lawyers cannot use celebrity endorsements in their advertising, but they can in their other professional endeavors as well (such as doctors). As further examples, while first-time lawyers cannot accept clients through solicitation by non-lawyers or the payment of referral fees, those restraints do not apply to other services professionals.
The ethics rules generally treat lawyers’ advertising differently from other advertising, as it involves a highly regulated profession that, until some years ago, was subject to a strict ban on advertising altogether. While lawyers are no longer limited in this area, no professions are allowed to "cross the line" into deceptive, misleading messages and promotional practices.
The New Jersey Advisory Committee on Professional Ethics, like other similar bodies, has indicated that advertising and marketing which is barely permissible under the rules may still be viewed scrutiny by the public and can warrant concerns on the part of the judiciary. Therefore, lawyers must carefully portray the services they provide and make sure that their claims are substantiated, or risk disciplinary action.
Permissible advertising under the New Jersey Rules of Professional Conduct, RPC 7.2(b):
RPC 7.2(c) prohibits communicating through any advertisement that is false or misleading or which misrepresents the independence of the lawyer or the lawyer’s law firm.
RPC 7.2(d) prohibits advertising in any self-laudatory manner or making claims of specialization in a particular area of practice. (Acknowledgment that an attorney has been certified by the Supreme Court of New Jersey as a civil trial attorney is an exception).
RPC 7.2(e) does not allow for a lawyer to refer to an ongoing case or that of a potential client using a nickname, fictitious name or initials of a client, past, present or prospective, without securing the written consent of that individual.
RPC 7.2(f) requires an attorney to include the name of the individual or organization responsible for the advertisement in the advertisement.
RPC 7.2(g) bars an attorney from compensating anyone who may provide referrals, unless it is to another lawyer. This prohibition does not prohibit the creation of a prepaid or group legal service plan or a not-for-profit organization that provides legal services or information.
RPC 7.2(h) additionally does not bar an attorney from paying for the reasonable costs associated with advertisements or communications submitted to the board of bar examiners or to a client’s law firm or organization.
RPC 7.2(i) requires that all advertisements contain notice of prohibitions on communications through advertisement that restrict the lawyer’s services to area of law in which the lawyer is not certified or was denied a certificate.
For more information on ethics rules surrounding advertising for legal services in NJ, see RPC 7.2 (including legal ads rules), RPC 7.1 (competence, communication and general obligations of client-lawyer relationship), and RPC 5.4 (professional independence of a lawyer).
Addressing Ethical Misconduct
Ethical misconduct can take many forms and can arise in any area of legal work. The state has an ethical responsibility to clients in how they represent their clients in the various types of transactions. As a state that allows attorney’s to act as both lawyer and notary they have very strict laws and set forth what they expect. The adoption of high standards of professional conduct and ethical accountability for association members makes it imperative for association leaders to be aware of their responsibilities in handling ethical issues. The association must assure fairness , impartiality and transparency in all of its activities. A complaint filed can be very serious for a lawyer. A grievance will require a lawyer to spend time and money in an original response. The purpose of the committee is to weed out the frivolous and make sure that they are not wasting time on petitions that have no merit. A grievance does not mean that the lawyer acted unethically but the committee believes that you should at least get some information in order to stop the attack. If an indefensible act has occurred such as theft or unethical activity, then the matter must be taken seriously. The committee has the power to fine and sanction the attorney. If they are found to be proven unethical the client attorney repayment fund will be taken into consideration.