What Are Some of the Common Ethical Issues Related to Court Procedures?
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How to avoid 10 common ethics pitfalls
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Lawyers are stewards of their clients' most sensitive and personal data. They serve equally officers of the court and are in positions of public trust. But these loftier standards can lead to steep falls, and a lawyer who doesn't carefully listen ethics obligations can apace run afoul of the rules of professional responsi-bility.
Most states require ethics training every bit function of continuing legal didactics requirements. Merely a quick browse of disciplinary records reveals lawyers behaving badly on a spectrum of issues—from improper advertizement to mishandling individual information and everything in between.
Whether intentionally flouting ideals rules or unwittingly succumbing to the many pitfalls that tin appear, lawyers regularly face discipline for crossing the line. Being hauled in front of a disciplinary board can cause professional embarrassment, pause of a law license and fifty-fifty disbarment.
We asked legal ideals experts for a primer on the most pressing and pernicious ethics traps out in that location for the modern lawyer, forth with best practices to avoid bug on the front.
The lesson is to not only beware, simply be aware.
Competency
Photo of Jan Jacobowitz courtesy of the University of Miami School of Law
Trouble: Agreement engineering and protecting client data
Arguably, a lawyer's foremost duty is the duty of competency, outlined in Rule one.1 of the ABA Model Rules of Professional Deport. In 2012, Annotate 8 to Rule i.i included the then-called applied science clause, which provides: "To maintain the requisite noesis and skill, a lawyer should continue abreast of changes in the constabulary and its exercise, including the benefits and risks associated with relevant technology."
In this historic period of hacking in a speedily changing digital earth, protecting client data and cybersecurity are among the key reasons lawyers must stay current on engineering.
"On the technology front … some lawyers remain relatively in the dark and risk breaching client confidentiality non merely from a traditional cybersecurity breach but likewise from other 'smaller' misuses of engineering," says January Jacobowitz, an ideals skillful who teaches at the University of Miami Schoolhouse of Law. She cites the examples of lawyers working on public Wi-Fi or not realizing they have pocket-dialed an opposing counsel who may so overhear a privileged or confidential chat.
Best steps:
Lawyers tin can avail themselves of the many CLEs, books and vendor trainings in this area. Attorneys must take proactive steps to learn more about applied science and empathize the ethics breaches related to customer data or privacy. "Regarding technology, although information technology may exist a steep learning curve for some, at that place are many articles and books available to enlighten oneself, as well equally an unabridged cottage manufacture of tech consultants that has emerged to assist the legal profession," Jacobowitz says. "The old adage 'know what you don't know and seek assistance' applies to engineering and the constabulary."
Problem: Client neglect
"Fail is one of the 2 nearly mutual reasons for discipline complaints," says professor Leslie C. Levin, who teaches professional responsibility at the University of Connecticut School of Law.
Attorneys can stretch themselves thin and take on overwhelming caseloads that can cause their customer matters to endure.
"Neglect often occurs due to our cognitive biases, including overoptimism and overconfidence," Levin says. "Lawyers—like all people—tend to overoptimistically believe they can practise more in a twenty-four hours than they can actually attain. … This leads to upstanding violations. Some lawyers will take on more work than they can handle, thinking that they can go it all done on time and in a competent fashion when they cannot."
Best steps:
The best way to avoid this competency trap is to exist enlightened of the danger of taking on too much.
"Lawyers need to be mindful of these cerebral biases, which distort our power to accurately assess how long information technology takes to complete our work," Levin says. "Lawyers should mentally add in some extra time for unexpected events that may crusade delays," she says. "They should ask for help from colleagues when they brainstorm to feel overwhelmed. If they find themselves lying to a client about work they should have done, they should admit to themselves that they have a problem and that they demand to have immediate steps to accost information technology."
Billing
Susan Saab Fortney: "Many lawyers unwittingly autumn into the ideals trap of fee modifications." Photos courtesy of the University of Arizona and Fordham Academy School of Law; photo by Chad Ballenger/Texas A&M University School of Law
Problem: Fee shenanigans
Many ideals issues arise from overcharging for legal services or other billing matters. Model Dominion ane.5 prohibits lawyers from charging unreasonable fees, and attempting to modify a fee arrangement with a client tin can pose an even bigger ethics result.
"Many lawyers unwittingly autumn into the ethics trap of fee modifications," says professor Susan Saab Fortney, who teaches ideals at Texas A&One thousand School of Police. "Some courts take treated modifications as business transactions subject to the strict requirements of Model Rule 1.8(a)," which covers the conditions under which a lawyer can enter a transaction adverse to a customer'due south interest. "The modification may also be field of study to the presumption of voidability, meaning that the lawyer must show that the contract and circumstances of its germination were fair and reasonable to the customer. In some cases, a client may assert that the modification was a breach of fiduciary duty."
All-time steps:
Lawyers should anticipate the possibility of a fee modification in the initial retainer understanding or fee schedule. In other words: Programme ahead.
"For example, the engagement understanding could spell out a formula for a performance bonus," Fortney says. "2d, lawyers should specifically ascertain the scope of work to be handled under flat fees. Tertiary, if the original agreement does non account for increases or changes, special intendance should be taken to comply with ideals rules and fiduciary principles."
Fortney explains that in law firms, the proposed modifications should exist handled by someone in the firm unrelated to the representation. "Above all, lawyers should non quit doing piece of work and try to pressure clients to pay higher fees when piece of work is necessary to protect client interests," she says. "The prudent class is to take steps to withdraw from representation when allowed for under applicable ethics rules and fiduciary principles."
Lawyer-client relationship
Photo of Keith Swisher courtesy of the University of Arizona and Fordham University School of Police; photo past Chad Ballenger/Texas A&M Academy School of Law
Problem: Creating an accidental client
When lawyers communicate with people on webpages or other modes of communication, there is the potential for ethics problems if they're not careful. While the lawyer assumes no lawyer-customer human relationship has been created, Keith Swisher, a legal ideals professor at the Academy of Arizona James E. Rogers College of Law, warns that some might believe otherwise. An individual might assume the lawyer, by answering their question online or conversing with them in another manner, might have agreed to representation because the lawyer is dispensing legal advice.
Best steps:
Swisher says lawyers "should more often than not consult only with plausible clients, i.e., persons or entities with whom the lawyers are actually considering an attorney-client relationship." He besides recommends "well-written and well-placed disclaimers on websites" to avoid the problem of what he terms "accidental clients." He too cautions that lawyers should "avoid the proverbial cocktail conversation or random phone call."
Criminal law
Bruce A. Green: "Defence counsel should avert being solitary with foreseeably hostile witnesses." Photos courtesy of the University of Arizona and Fordham Academy Schoolhouse of Law; photo by Republic of chad Ballenger/Texas A&M Academy School of Police
Problem: Potentially hostile witnesses
At that place are some potentially thorny ethics traps for lawyers practicing criminal law. Bruce A. Green, a professor at Fordham University School of Law who writes regularly on ideals issues in criminal police, points to the problem of a lawyer interviewing a witness who later turns out to exist hostile. "Criminal defense force lawyers have a duty to investigate, which typically includes making an effort to interview witnesses."
Lawyers sometimes do these interviews lonely, but Green says that can create issues if the witness later testifies differently in court. "The lawyer might like to elicit or innovate the witness's prior statements," he says. "But the lawyer will crash-land up against the rules that say a lawyer may not be both an abet and a witness at trial."
Best steps:
Light-green points to the language of ABA Criminal Justice Standard for the Defense Part 4-4.iii(f), which reads: "When the demand for corroboration of an interview is reasonably anticipated, counsel should be accompanied by another trusted and credible person during the interview. Defense counsel should avoid being alone with foreseeably hostile witnesses."
Advice
Photo of Deborah Rhode courtesy of Stanford University and John Browning
Problem: Exaggerating credentials
Some lawyers, in an attempt to increase concern, engage in puffery. A lawyer claims he has 20 years of experience, when in reality, he has had a police license for but seven years. A lawyer advertises himself as a seasoned courtroom litigator when he settles all his personal injury cases instead of taking them to trial. These exaggerations tin run afoul of Model Rule 7.1, which prohibits lawyers from engaging in false and misleading communications. The rule is designed to protect consumers from attorneys who engage in deceptive advertizement practices.
"Lawyers have an obvious interest in inflating their credentials and operation, which often borders on fraud and sometimes crosses the line," says Stanford Law School professor Deborah Rhode, writer of Cheating: Ethics in Everyday Life. "They are not alone. Every bit I note in my contempo book on cheating, i report on resume fraud plant that ii-fifths included information that was inconsistent with educational records.
"Other communications may seem more similar puffing than outright lies merely may be misleading to unsophisticated clients," Rhode says. "The more than that lawyers see others fudge the facts, the less they are to view their own conduct as problematic. The event is what psychologists telephone call 'ethical numbing,' and information technology is not as gratuitous as is often assumed. Such small deceptions oft pave the way for greater misconduct and create a corrosive civilisation. Much of legal exercise depends on a sense of honesty and trust, and when lawyers erode that perception, we all suffer."
All-time steps:
Lawyers shouldn't exaggerate their credentials or appoint in faux statements well-nigh their qualifications or tape. Such statements may cause clients to take unjustified expectations and tin can lead to other problems. Equally always, honesty is the best policy.
Problem: Managing negative reviews
No 1 likes to read negative reviews virtually themselves—whether information technology is a poor teaching evaluation, a bad review of a business or a 1-star rating for professional legal services. Simply lawyers need to think twice earlier firing back with responses to negative reviews. It can create an ethics problem if the lawyer goes too far and reveals confidential client data. (Come across "Trashed by a Customer Online?" folio xxx.)
Photograph courtesty of John G. Browning.
"Equally the tide has turned in contempo years, and the cyberspace and social media have become the leading sources for people to search for and annotate on legal services, information technology'southward become more important than always for lawyers to have a good online presence and practice proficient 'digital hygiene,'" says John Thou. Browning, an expert on social media and the law. "Only when a lawyer sees a negative review of his/her services on either a consumer review site like Yelp or an chaser-specific site like Avvo.com, as well many lawyers accept a knee-wiggle reaction of rushing to defend themselves, often revealing confidential client data in the process."
Browning says several state ethics opinions note that "a negative online review does not merit the 'self-defense' approach of a disciplinary action or a legal malpractice suit, where a lawyer may reveal customer confidential information in his/her ain defense force."
A related problem can arise when a lawyer files a defamation lawsuit against a one-time client. That lawsuit could be considered a strategic lawsuit against public participation—a SLAPP suit.
Browning says the customer might file a special motion to dismiss nether a country anti-SLAPP law and could recover attorney fees from the suing attorney.
Best steps:
"I counsel lawyers to respond emphatically and professionally in responding online, inviting an offline chat and keeping in mind that their response is being read non merely by the ex-client to whom information technology'due south existence directed but to an online audience of endless potential clients," Browning says.
Confidentiality
Photograph of Sarah Lamdan courtesy of CUNY School of Police force; photo by Lois
Problem: Big data and confidentiality
Arguably, the most sacrosanct ideals principle in police force is confidentiality—preserving inviolate attorney-client dialogue and work product. This becomes more than complicated in the digital age and the era of big data. Sarah Lamdan, a professor at the Metropolis University of New York School of Law who writes nigh these issues, says: "Ane has to wonder whether lawyers violate their confidentiality mandate when they use research programs, document-sharing systems and other workplace products that record lawyers' enquiry and writing."
She says this is particularly true when companies sell data to law enforcement and other entities. She warns that "ethical issues … may ascend when we use Westlaw and Lexis products, whose parent companies—RELX Grouping and Thomson Reuters—are major information brokers to law enforcement, credit rating and employment groundwork companies, and others who may be able to get together data about lawyers' cases through data collected past their legal enquiry systems."
Best steps:
Lamdan says lawyers can "button back on vendor practices that violate our ideals and … ask for assurances that these products don't intermingle our work product or sensitive client data into their big data sales and collection services." She provides the example of "asking Westlaw and Lexis to provide statements to lawyers promising that they will wall off their legal products from their data-brokering activities." She notes that other services could expunge lawyer work-product information and take steps to ensure the data they exercise collect is encrypted and protected from data-gathering operations.
Lawyer well-beingness
Carol Langford: "Live smaller, lighter and ultimately happier lives." Photo of Ballad Langford courtesy of CUNY School of Law; photograph by Lois
Trouble: Personal life affects professional life
At that place are numerous means a lawyer's personal life might create problems. Lawyers sometimes face increased force per unit area to make more than money, whether it's to keep up with the Joneses or take care of family members.
Practitioners facing financial stress may fall prey to addictive behaviors such equally gambling or substance corruption. Such an habit tin and then come to dominate a lawyer's life.
San Francisco Bay Area-based attorney Carol Langford, who represents lawyers in disciplinary matters, describes it every bit "lawyers doing things in their personal lives that permit trouble to slowly pitter-patter in and reside."
She explains: "They buy big houses and and so struggle in a recession to pay for their living costs, making them susceptible to foisting excessive fees on clients or taking advantage of them." This tin can lead to the temptation to commingle customer funds, charge excessive fees or bilk clients.
Best steps:
Langford says the solution is to "live smaller, lighter and ultimately happier lives." This requires what she calls "existent humility—face your mortality and eventual decline. Programme for information technology." She describes information technology as "not a popular way of life these days, but a path to true happiness."
Lawyers also should have greater reward of the resources offered by lawyer assistance programs, which can provide a needed lifeline to attorneys whose personal challenges are negatively affecting their professional responsibilities.
Conflicts of Interest
Photo of Peter A. Joy courtesy of Washington University School of Law
Problem: Lateral moves
Peradventure the ultimate duty a lawyer owes a client is the duty of loyalty. That loyalty tin be tested when lawyers switch firms.
A lawyer from Firm A moves to Firm B. Firms A and B accept lawyers on opposite sides of a very contentious case. The possibility exists that a conflict of involvement can develop if in that location is not a sufficient screening system in place to make up one's mind whether the newly hired lawyer had access to confidential client information.
At that place is likewise the appearance of impropriety or conflict, even if none exists.
"There is increasing lawyer mobility with lawyers moving from one firm to some other, and the hiring of lateral partners and associates can trigger conflicts of interest if not done correct," says professor Peter A. Joy, who teaches ethics at Washington University School of Police. "Some hiring firms overlook or ignore the steps they demand to take, often resulting in being disqualified from representing a longtime client and sometimes triggering a malpractice claim."
Best steps:
"Before hiring a lateral, the hiring business firm has to practise its due diligence to identify conflicts with existing clients and so determine if the jurisdiction permits upstanding screening as a solution," Joy says. "In some instances, such as a potential lateral partner or associate who has been representing a customer in a affair adverse to the hiring house'due south client, only informed consent of the client adverse to the hiring house's customer will waive the conflict, and the lateral will not exist able to bring that client to the hiring firm."
This commodity appeared in the June/July 2020 issue of the ABA Periodical under the headline: "Do the Right Thing: How to avoid ten common ethics pitfalls."
David L. Hudson Jr., who teaches at Belmont University College of Law, is a regular contributor to the ABA Periodical.
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Source: https://www.abajournal.com/magazine/article/how-to-avoid-10-common-ethics-pitfalls
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