January 2019 | Earn one hour of MCLE Credit in Legal Ethics
By Steven Sparta PhD
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The Committee on Professional Responsibility and Conduct ("COPRAC" or the "Committee") is a standing committee of the State Bar Board of Trustees. COPRAC, among other activities, develops and issues advisory ethics opinions. COPRAC members also write self-study articles related to legal ethics. As a non-lawyer public member of this Committee, I have reflected on past Committee discussions about legal ethics and offer some thoughts from the perspective of a consumer. Toward that end, I conducted an informal anecdotal survey of adults from northern and southern California, which yielded some common themes parallel to topics often debated among the Committee members. I highlighted here some trends from the comments of consumers of legal services in reference to the Rules of Professional Conduct and relevant sections of the Business and Professions Code. I hope that the following will assist attorneys to meet their professional obligations.
1. Public comment: "I want my lawyer to know what they are doing.": Consider Rule 1.1, "Competence." Your client expects you to be knowledgeable in the areas of the law relevant to the representation. Do you have the requisite learning and skill required of a competent attorney? This might be the first thought when considering competence, but is not always easy to determine what an individual lawyer considers his/her own practice, or when a presenting legal problem evolves into a practice area different from the lawyer's education, skill, and experience. One of the ways to assure your requisite knowledge is by pursuing continuing legal education. Such courses will challenge you to compare your existing knowledge or skill to that of other legal practitioners, along with their updates on case law, rules of court, etc. Rule 1.1 (c) states that if a lawyer does not have sufficient learning and skill when legal services are undertaken, the lawyer nonetheless may provide competent representation by (i) associating with or, where appropriate, professionally consulting, another lawyer whom the lawyer reasonably believes to be competent, (ii) acquiring sufficient learning and skill before performance is required, or (iii) referring the matter to another lawyer whom the lawyer reasonably believes* to be competent. It is not only required, but prudent, to ask for assistance from other counsel when needed to supplement your existing knowledge.
2. Public comment: "I want my lawyer to work hard for me." While the rule concerning competence requires a sufficient level of legal knowledge and skill, a new Rule of Professional Conduct sets forth a lawyer's obligation with respect to diligence. Rule 1.3 "Diligence" requires that you sustain your interest, effort and focus so you can provide your clients a reasonable degree of performance in reference to the agreed upon legal service. Rule 1.3 (b) notes that reasonable diligence shall mean that a lawyer acts with commitment and dedication to the interests of the client and does not neglect or disregard, or unduly delay a legal matter entrusted to the lawyer. Please consider the weight of your work load as objectively as possible, so that you can realistically be and remain sufficiently diligent to meet the needs of your client. Do you have a range of clients whom you value so differently, that some are regarded as more "important" than others? Are you unconsciously or unwittingly putting those less important clients at risk to receive sub-standard diligence? Your client has only one lawyer in the world representing them with respect to a particular matter at a given time. As a lawyer you must remain committed and dedicated to the interests of each client.
3. Public comment: "I want a lawyer I can depend on." Rule 1.1(a) regarding competence states that a lawyer shall not intentionally, recklessly, with gross negligence, or repeatedly fail to perform legal services with competence. Additionally, Rule 1.1(b) notes that for purposes of this rule, competence in any legal service shall mean to apply the (i) learning and skill, and (ii) mental, emotional, and physical ability reasonably necessary for the performance of such service. Please be alert to the fact that problems associated with mental abilities (e.g. memory functions) or emotional conditions (e.g. depression) can be caused by a broad range of conditions which can negatively affect the analytical abilities and/or the dedication of a lawyer. Such conditions may include: cognitive decline in advanced-age attorneys; those with medical diagnoses affecting thinking or reasoning; attorneys suffering from feelings of hopelessness, anxiety, and/or depression which in turn can compromise attention/concentration, energy or fatigue, cause sleep deprivation (a major cause of attention or judgment lapses in post-accident investigations), and/or result in alcohol or substance abuse. I need not remind you that the practice of law is often very stressful. Over-stressed attorneys may be tempted to self-medicate using alcohol or drugs, especially in response to a variety of personal and professional challenges (e.g., separation or divorce, death of a loved one, adverse employment setbacks, financial crises).
Please also consider that the ethical duties described in Rule 1.1 involving impaired mental, emotional or physical ability are not limited to whether you might suffer from a condition which warrants remediation, but you also have an obligation if you become aware of such conditions while acting as a managerial or supervisory authority over another lawyer working with you on the same case. In those cases where you reasonably determine that the impairment of a colleague or subordinate may compromise the duty of competent service, then depending upon the circumstances, you may need to consider referral to another attorney, substitution of co-counsel, or delay of legal action, provided of course it does not adversely impact the interests of the client, until the suspected compromise of functioning can be remedied. These duties are stated in Rule 5.1 "Responsibilities of Managerial and Supervisory Lawyers." Rule 5.1(a) notes that a lawyer who individually or together with other lawyers possesses managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has placed into effect measures giving reasonable assurance that all lawyers in the firm comply with these rules and the State Bar Act. Rule 5.1(b) notes that a lawyer having direct supervisory authority over another lawyer, whether or not a member or employee of the same law firm, shall make reasonable efforts to ensure that the other lawyer complies with these rules and the State Bar Act.
4. Public comment: "I want my lawyer to make sure that I understand what is happening with my case." Rule 1.4(a)(3), "Communication With Clients," states that a lawyer shall keep a client reasonably informed about significant developments, including promptly complying with reasonable requests by a client for information and copies of documents when necessary to keep the client informed. Rule 1.4(a)(4) requires attorneys to advise the client about any legal or professional limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law. Please note that what constitutes a significant development or reasonable request is fact dependent and may be influenced by the purpose of the representation, the sophistication of the client, client expectations and numerous other variables. Consider also that, clients may form different judgments about what they consider significant and therefore what they believe must be communicated to them. Perceptions by clients about legal information can vary markedly from those perceptions and judgments by attorneys. "Grey areas" may exist about whether certain information should be considered significant enough to require a communication. Please consider that the potential for differences in perception between client and attorney is not necessarily governed by educational level or presumed sophistication of the client.
The rules regulating communication do not require a lawyer to communicate insignificant or irrelevant information. Nonetheless, should a case result in a negative outcome through no fault of the attorney, clients may more easily resort to critical retrospective analyses about the quality of legal services, when the client believes they were inadequately informed of significant case developments. Therefore, please consider erring on the side of more, rather than less, communication, including whether it would be more prudent for you to send regular e-mail updates, create an update schedule and stick to it, and prompt yourself to return phone calls and e-mails.
Rule 1.4 "Communication With Clients" does not address individual factors about the client which might be relevant to what constitutes adequate communication between lawyer and client. However, please consider the client's educational level, vocabulary, language competence, prior experience with the legal system and/or disputes, and familiarity with the legal subjects being communicated. Rule 1.4(b) requires a lawyer to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Business and Professions Code section 6068(m) requires attorneys to respond promptly to reasonable status inquiries of clients and to keep clients reasonably informed of significant developments in matters with regard to which the attorney has agreed to provide legal services.
When a client considers whether legal services have been satisfactorily performed, including whether the client believes they were adequately informed, are their perceptions based on the costs of the service or the outcome of the case? It is interesting to note in an ABA E-Report concerning client satisfaction with legal services (Sandra Prufer, In-House Counsel Axing Law Firms, Survey: 70 Percent of Big Companies Dissatisfied with Primary Outside Counsel, ABA JOURNAL EREPORT, Sep 8, 2006), based on the results of a survey reported in the article, neither outcome or cost of services were most frequently mentioned as a cause of client dissatisfaction. Instead, the following aspects of legal representation were often mentioned, some of which are related to Rule 1.4 concerning communication: failure to mention legal information; non-responsiveness; perceived arrogance; or failure to give clear, direct advice. Please consider whether you rely upon your client to broach questions about the status of the case or to voice concerns before you initiate communication related to significant legal information. It is also prudent to consider Business and Professions Code section 6068(m): "To respond promptly to reasonable status inquires of clients and to keep clients reasonably informed of significant developments in matters with regard to which the attorney has agreed to provide legal services." Communications should be prompt and convey enough information to reasonably inform the client. When attorneys have decided upon a particular legal approach from among a range of possibilities to achieve client objectives, the lawyer must assure adequate client communication. Among the times when communication is most important are when a decision is pending whether to mediate, arbitrate or litigate a matter; when considering a waiver involving questions pertaining to a possible conflict of interest (indeed, Rule 1.4(a)(1) requires the communication of information required to get the client's informed consent); or developments potentially affecting the representation due to a lawyer's serious illness or mergers involving another firm.
The highlighted discussion in this article reflects issues mentioned frequently by the public. Please think about competence, communication, diligence and compassion in all areas of your legal practice, including those legal applications where it may not be immediately apparent.
Steven Sparta, Ph.D., is a clinical professor of psychiatry at the University of California San Diego School of Medicine and is a public member of the State Bar of California Committee on Professional Responsibility and Conduct.
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