Lawyers go back to school to brush up
on their ethical duties
By Nancy McCarthy
- What is the quickest way to get a client to file a complaint against you?
- I don’t have a trust account. Is that okay?
- If my client told me to go ahead and sign every agreement on his behalf, is it always okay to sign for the client?
Lawyers who attend the State Bar’s ethics school and trust accounting class – most as the result of a disciplinary proceeding – should come away with the answers to these questions. And while they might seem fairly benign, and obvious, to most practitioners, they address the sorts of issues that land lawyers in the bar’s discipline system.
|State Bar prosecutor Rob Henderson
teaches ethics school
At an ethics class in San Francisco last month, all 14 attendees were there because they had to be. The nine men and five women ran the gamut of practice, from criminal defense, to civil litigation, to toxic tort, to bankruptcy. They were there for different reasons: At least one was suspended and prohibited from practicing. Others were on probation and still others were required only to attend ethics school. And although instructor Rob Henderson addressed everyone by first name, he told the class they could remain anonymous or provide any name they wanted; “Mudflap” was the name a prior attendee used.
Although Henderson acknowledged that a couple of people usually leave the class mad at him, last month’s group wasn’t particularly aggrieved, and no one appeared angry. At one point, Henderson chuckled, “This is a kinder, gentler State Bar,” drawing a laugh from the class. “No, it’s not,” replied one student.
Another lawyer, hinting that bar lawyers don’t possess real world experience, told Henderson, “I don’t mean to cast aspersions, but did you come right out of law school to the State Bar?” When he said he had, she shrugged, perhaps suggesting things might be different for someone working in the legal trenches. “I’m kind of an ivory tower person,” Henderson admitted.
Almost every attorney who is disciplined by the State Bar is ordered to spend six hours in ethics school. For their attendance and successful completion of a 20 question true-or-false test, most earn six hours of continuing legal education (MCLE) credit. Those who mishandle their clients’ money also have to complete three hours of trust accounting class and pass a 10-question test. In 2010, 312 attorneys attended ethics school and 104 took the trust accounting class.
Both classes are open to any attorney who wants to brush up on professional responsibility questions. Ethics school costs $150 and the trust account school is $100. Each is offered every couple of months in both San Francisco and Los Angeles.
Susan Margolis, a Los Angeles attorney who defends lawyers facing discipline, said she attended a class with some clients and found it “one of the better services” the bar offers. “I’ve heard from my clients that overall it’s pretty good,” she said. “It has value for people.” Margolis thinks the class would be particularly useful for recent law school grads, and can be time well-spent for many practicing lawyers.
Henderson tried to keep it light, with a goal of getting the class to be familiar with and buy in to rules that govern lawyer ethics. He hit the high points in the State Bar Act and the Rules of Professional Conduct, with heavy emphasis on communicating with clients (hint: see question 1 above) and providing competent legal services.
“I feel your pain,” Henderson told the class, who knew the perils of not returning client phone calls. “I understand completely that your clients want to talk to you.” Two students said they were there because they didn’t respond to their clients. (One was a distraught client who called the office daily and consumed an inordinate amount of staff time; another was incarcerated, moved around to different prisons and the lawyer eventually lost track of him and stopped keeping in touch.)
Henderson touched on rules that govern how to get clients, how to handle money, working with clients, closing matters and finishing up with clients. Along the way, he said, “You’ll see how all the rules work together.”
Some in the class get clients through referrals, a practice that led to a discussion of financial arrangements among lawyers. Others advertise, leading to a discussion of not only traditional Yellow Page ads, but letterhead, business cards, web pages, even the name lawyers give their firm. Be careful: “Firm” implies more than one lawyer. And Henderson urged caution about guaranteeing results or using the terms “certified” and “specialist.”
What about posting your availability on Facebook? Or instant messaging? Robo-calls? Direct mail solicitation? Flyers left at church with the minister’s permission?
Henderson moved on to intake forms, written fee agreements, where to deposit fees and costs. A written fee agreement is required, he said, if the fee exceeds $1,000. Besides outlining the scope of services, the agreement should protect the attorney and control the client’s expectations. “You want to do everything in your power to be clear about what it was you were hired to do,” he said. Clients are “spectacular” at documenting their lawyer’s perceived failures, he said, and offered solutions for when things go awry. “If somebody rubs you wrong, think long and hard about taking the case,” Henderson suggested.
Lawyers can be automatically suspended for not paying bar dues or complying with MCLE requirements, failing to pay a fee arbitration award or child support. But Henderson said in investigating client complaints, the bar looks for “big gross errors,” like blowing the statute of limitations or missing a hearing. “Losing a case doesn’t mean you performed incompetently,” he said. “I hope the State Bar realizes we’re all human beings and things happen,” said one student.
With only minimal use of ubiquitous BlackBerrys, the class was engaged and wide awake, asked questions, presented hypotheticals and even sparred with one another over what’s proper. Many had consulted the bar’s Ethics Hotline, which offers guidance but not legal advice, and came away dissatisfied. Henderson, who himself manned the hotline for three years, said some questions are esoteric and are not easily answered. “Lots of things don’t make perfect sense,” he said.
Evaluation forms submitted by participants in previous classes were uniformly positive. “I learned valuable information that was not common knowledge but is absolutely needed in the practice of law,” wrote one student, who described the session as “outstanding.” Another said ethics school “far exceeded my expectations in terms of quality of content, presentation skills and usefulness of content matter.”
At last month’s class, an Oakland lawyer who drew a one-year probation said he found the review useful “but the gray area is still there.” After practicing for more than 20 years, “to end up here is not a good thing.” Another longtime East Bay attorney admitted that a complaint filed against her was valid, but said she resented the ethics school requirement and a reproval would have been sufficient punishment. She paid a lawyer $30,000 to plead her case with bar prosecutors and opted to forgo a trial because of the $25,000 price tag. She wondered if the discipline system exists “to justify the humongous percentage of (bar) dues that go to discipline.”
A Sacramento criminal defense lawyer admitted he’d dropped the ball and deserved some discipline, but said attendance at ethics school was humiliating and the online report of his discipline left him scrambling for work.
Henderson listened sympathetically and shook his students’ hands after they completed the test. They all passed.
Answers: 1. Don’t return client phone calls or respond to their letters or emails. 2. You or your firm must have a client trust account if you handle settlement funds or accept advances for costs/expenses. 3. Client authorization is insufficient to sign under certain circumstances. For example, signing a verification on behalf of the client would be wrong and likely lead to discipline because the verification is saying the client actually read the document and verifies that the statements in the document are accurate.