Author: Tim Roberts

The Texas Bar Journal publishes a list of disciplinary actions each month. The May 2020 edition has over a dozen instances regarding attorney disciplinary actions, including judicial actions, disbarments, suspensions, and public reprimands. Anyone searching for an attorney can access information about the attorney on the Texas Bar Association’s website.

The Texas Government Code §81.115 requires that an attorney licensed to practice in Texas has a public profile. The profile includes basic information about the attorney, including the firm size, law school attended, year graduated, and any specialties. The profile also includes the attorney’s public disciplinary history for Texas and other states.

The information for disciplinary sanctions is only available online for the past ten years. If someone needs disciplinary or sanction information beyond ten years, the person must contact the Texas Chief Disciplinary Counsel.

Rules Governing Professional Conduct of Lawyers

Ethics is a set of rules and codes that regulate the conduct of attorneys. The American Bar Association has drafted Model Rules of Professional Responsibility as a guide for ethical conduct by attorneys. However, each state is responsible for drafting and passing a set of codes and rules of professional conduct for attorneys licensed to practice within the state.

The code of conduct covers numerous concepts and areas related to the practice of law. Some of the topics covered in a code of conduct include, but are not limited to:

• Professional judgment;
• Conflicts of interests;
• Disclosure of relevant information;
• Confidentiality;
• Zealous representation;
• Competence; and,
• Fiduciary duty.

Code of Ethics for Attorneys Practicing in Texas

When individuals pass the Texas bar and are admitted to practice law in Texas, those lawyers take an oath to obey the Texas Disciplinary Rules of Professional Conduct and the Texas Rules of Disciplinary Procedure.

The Texas lawyer’s Creed describes how a lawyer should conduct business within the legal system. It also directs that a lawyer should use all appropriate legal means to protect and advance a client’s best interest. The Creed also describes a lawyer’s duties for conduct with other lawyers and judges.

Reasons an Attorney May be Disciplined

Attorney misconduct may result in a variety of actions, including disbarment and suspension. Common reasons why a court may discipline a lawyer include:

• Willful violation of a court order;
• Theft of client funds or property;
• Crimes of moral turpitude;
• Failure to pay bar dues;
• Failing to maintain continuing legal education requirements;
• Personal misconduct that reflects negatively on the attorney’s character, honesty, or integrity;
• Failing to provide adequate communication with clients; and,
• Breach a client’s confidence and trust.

An attorney may face disciplinary action for conduct that is legal but unethical.

What is a Fiduciary Duty?

One of the essential elements of a lawyer’s duty to clients is the fiduciary duty. A fiduciary is someone whom another party has placed the utmost trust to handle a matter or protect money or property. A fiduciary has a duty to act in the best interest of the beneficiary.

The fiduciary relationship is created when the client hires the attorney, and the attorney agrees to represent the client. The attorney has several duties when acting as a fiduciary for the client.

For example, an attorney’s duty of loyalty to the client prevents the attorney from taking any actions that are adverse to the client.  Lawyers should not profit or gain material benefit from a third party in connection with the attorney’s representation of the client.

A lawyer also owes a client a duty of confidentiality. An attorney should not disclose or use information the attorney learns while representing a client for any other purpose than representing the client. A duty to maintain confidentiality goes beyond the attorney-client privilege.

The duty of confidentiality prevents a lawyer from using any information for the lawyer’s benefit. It also prevents the lawyer from disclosure information, either for the lawyer’s benefit or the benefit of a third party.

Lawyers Also Owe Clients a Duty to Exercise Reasonable Care

An attorney cannot guarantee a specific outcome in a case. The attorney gives a legal opinion based on the attorney’s experience and the attorney’s interpretation of the law. That legal opinion is not a promise of an outcome.

However, the attorney does have a duty to exercise reasonable care throughout the representation of a client. The attorney should take all reasonable measures and steps to achieve the outcome the client desires.

Examples of failing to exercise reasonable care include, but are not limited to:

• Failing to research case law adequately and apply statutes correctly;
• Failing to perform an adequate investigation and discovery;
• Failing to monitor deadlines; and,
• Failing to obtain a client’s consent.

If a lawyer fails to exercise reasonable care or fulfill any of the other duties required by the attorney-client relationship, a client may have a civil claim against the attorney for legal malpractice.

 

 

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People are suffering across the United States because of the COVID-19 pandemic. Attorneys and law firms continue to provide essential legal services people need. Lawyers in New York City want to do more.

Like most states, New York attorneys are prohibited from providing financial assistance to clients. As inhumane as it sounds, doing so can violate New York Bar ethics rules. Leaders are working to change that.

An amendment to the New York ethics rules would let lawyers help their clients with basic living necessities, such as food and medication. The change is necessary so that attorneys who help clients do not violate ethics rules.

New York City Bar Supports the Humanitarian Exception

The New York City Bar Association sent a letter to the Chief Judge of New York State and the Presiding Justices of the New York Supreme Court Appellate Divisions. The letter calls for the immediate adoption of the proposed amendment to the New York Rules of Professional Conduct Rule 1.8(e).

The letter reminds the justices that the coronavirus has severely affected many New Yorkers. Businesses have closed, individuals have lost their jobs, and thousands of people have been ill because of the pandemic. Many people are going without basic living essentials because of the financial hardships caused by the pandemic.

Lawyers have come forward to offer their services for free to individuals who need legal services but cannot afford an attorney. Those same lawyers want to help their clients with their basic needs, but the current ethics rules prevent them from providing this vital humanitarian relief.

Ethics Rules Prohibit Financial Assistance for Clients

The current New York State Rules of Professional Conduct prevents attorneys from giving financial aid to their clients.

Rule 1.8(e) states that a lawyer who is representing a client in pending litigation or in connection with contemplated litigation cannot guarantee or advance financial aid to a client. The attorney may advance court costs or the expenses of litigation. The advancement of costs and expenses may even be contingent upon the outcome of the case.

According to Mirman, Markovits & Landau, a personal injury law firm in New York City, “the rule allows an attorney to pay the court costs and expenses of litigation if the client is a pro bono client. Lawyers may even pay court costs and expenses in cases in which their fees are payable as a percentage of the recovery in the case.”

The rule does not permit an attorney to buy groceries for a client. It does not allow an attorney to help a client obtain medical care or medication that the client needs. The rule does not let an attorney buy shoes of a client’s child who desperately needs another pair of shoes.

Proposed Amendment Adds an Exception for Humanitarian Relief

The NYC Bar Association stated in a March 2018 report that New York’s bar should take the lead in improving access to justice. Additionally, it should be easier for lawyers to act on their charitable desires and dedication to public service.

With the devastation caused by COVID-19 in New York, that statement takes on new meaning and purpose. The report also pointed out that other states have adopted a humanitarian exemption.

The proposed change in the rules of professional conduct creates a humanitarian exception to Rule 1.8(e). The change would allow a lawyer providing services to a client for free to offer financial aid to indigent clients. The rule would also apply to not-for-profit legal services, law school clinical programs, and pro bono programs at law schools.

Under the amendment, the lawyer or organization cannot promise financial aid as a way to retain clients. Lawyers cannot use the promise of financial aid as a way to encourage a person to remain the attorney’s client. Also, lawyers who offer financial aid cannot advertise or make known that the attorney is willing to provide financial aid to indigent clients.

The amendment to create the humanitarian exception has the backing of the New York State Bar Association.

Removing the Barrier Preventing Lawyers From Serving Their Clients

The NYC Bar Association asked the Courts to adopt the amendment now to allow lawyers to serve their clients in meaningful ways. If the Courts are unwilling to approve the amendment, the Bar asked the Courts to consider a temporary solution.

The Bar suggested that the Courts approve the humanitarian exemption until the COVID-19 state of emergency ends. A temporary order allows lawyers to provide much-needed aid to clients affected by the coronavirus pandemic.

Attorneys see how their clients are struggling. They are aware people are hungry and in need. They need the Courts to give them permission to help.

 

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What happens if a partner or supervisor at your law firm asks you to do something unethical? Can you carry out the requested task? Does the fact that your boss asked you to engage in the unethical behavior protect you from possible administrative sanctions? What happens if you don’t know that the request was unethical and do it anyway? Should or must you report the unethical request to an appropriate party? The decisions an attorney must make every day are often laced with ethical dilemmas. The choices you make after a superior asks you to do something unethical are no different. Attorney Adam Burke explains how the Ohio Rules of Professional Conduct apply to these ethics situations.

The ABA Model Rules of Professional Conduct and the Ohio Rules of Professional Conduct (“ORPC”) both speak directly to this issue. However, as with any other ethical issue, certain circumstances may make it difficult to arrive at one specific answer. Generally, an attorney is bound by applicable ethics rules “notwithstanding that the lawyer acted at the direction of another person.” So, if you work in a law firm and your supervisor directs you to engage in unethical behavior you are still responsible for your own actions. If you engage in the unethical behavior you may be guilty of breaching Ohio’s Rules of Professional Conduct.

However, there are circumstances in which a subordinate attorney may escape consequences for unethical actions. In Ohio, Rule 5.2 states that a subordinate attorney does not violate Professional Conduct if they act “in accordance with a supervisory lawyer’s reasonable resolution of a question of professional duty.” This means that if an issue arises that does not have a clear ethical course of action the superior attorney may make a judgment call about how to resolve it. ORPC Rule 5.2, Comment [1] provides an example of determining whether the interests of multiple clients conflict. There is no clear resolution based on current regulations. A supervisor’s “reasonable resolution” of this issue should prohibit you, the subordinate, from facing charges of unethical conduct. 

A subordinate may also escape the consequences for unethical actions if he or she did not have knowledge that the superior’s request was unethical. ORPC Rule 5.2, Comment [2] provides that if your superior asks you to file a frivolous pleading, you may not be guilty of an ethics violation if you did not know that the pleading was frivolous. Lack of knowledge of the unethical conduct can be considered as a factor when determining if you, the subordinate, are guilty of an ethics violation.

If you are a subordinate attorney who receives direction to engage in unethical conduct you may also be duty bound to report your superior’s misconduct. ORPC Rule 8.3 plainly states that an attorney who has unprivileged knowledge of an ethical violation “that raises a question as to any lawyer’s honesty, trustworthiness, or fitness as a lawyer…shall inform a disciplinary authority.” This is true regardless of whether reporting the superior’s ethical breach would also implicate yourself or another attorney.

The preamble of the ORPC makes it abundantly clear that the legal profession is vital to the maintenance, preservation, and well-being of society. Attorneys cannot contribute to the preservation of society if legal professionals are not held to an extremely high ethical standard. Ohio attorneys are, therefore, required to self-regulate the profession and hold others to a heightened standard. Failure to disclose another attorney’s unethical behavior, regardless of seniority in a law firm or court of law, is one’s own ethical failure in the eyes of the ORPC.

However, a takeaway from ORPC Rule 8.3 should be that the knowledge of the unethical behavior must be based on unprivileged information. If you learn of your superior attorney’s unethical conduct but cannot disclose such conduct without breaking privilege, you are generally prohibited from doing so. While the Ohio Rules of Professional Conduct places a significant burden on attorneys to “self-regulate” and “self-govern” the profession, it also respects the sanctity of attorney-client privilege. Unless your client waives privilege in order to allow you to disclose this ethical violation you may not do so.

The choices you make after your superior asks you to do something unethical are important. If you have unprivileged knowledge of unethical behavior – including requests for you to engage in unethical behavior – you are duty bound to report it. Just because a partner at your firm asks you to do something does not generally reduce your responsibility to adhere to the code of ethics. There are exceptions to the general rule, but it is often best to proceed with caution and toe the ethical line.

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