You know not to threaten your clients, not to lie or break the law and not to fool around with trust accounts. But did you know there are hidden ways an honest lawyer can still get in ethical trouble?
Here are three traps you might not have known about and how to avoid them.
Calling Yourself a Specialist
"Specialist" is a term of art in many jurisdictions. Up until 2002, the ABA Model Rules of Professional Conduct prohibited lawyers from calling themselves specialists unless they were certified as such by their states. In 2002, the ABA amended the rule to let lawyers say they specialized as long as they did not say they were certified specialists, unless they actually were. Of course, not everyone got that memo. Many lawyers are only familiar with the old rule; if you call yourself a specialist when you aren't a certified specialist, they might think you unethical or ignorant even if you aren't.
Calling yourself a specialist is fraught. The Supreme Court even decided a case on this issue. Best practice: don't call yourself a specialist unless you are certified by your state. If you aren't, then check if you can say you concentrate in an area of law, that you focus in it, or that your practice is limited to it.
Not Knowing the Ethical Rules Regarding Referral Fees
If you refer a person to another lawyer and receive a fee in turn (or vice versa), ABA Model Rule 7.2 requires, among other things, that the client agree in writing and that the total fee is reasonable. In addition, recall that Model Rule 5.4 does not allow sharing fees with non-lawyers, in general. Know the rules in your jurisdiction. In any event, only refer clients to lawyers you know are competent to handle their cases. Your reputation is on the line.
Stumbling Into an Improper Relationship With a Client
Business transactions with a client can raise conflict of interest issues because of the lawyer's (usually) superior skill and training, as well as the trust and confidence the client has a right to expect from a lawyer. That's obvious, but there's more. You might think you're doing a client a favor if you give him a job, but that can raise similar issues. Lending a client money can also be a problem, even if he's a destitute client and you're just lending him living expenses while you pursue his case. As always, know the rules in your jurisdiction.
These are just three ways honest, well-meaning lawyers can fall into ethical traps they didn't even know about. Sometimes it's great to think outside the box, but before you do, make sure you know the rules so you can follow them.
- ABA Journal Law News Now -- Legal Ethics (ABA)
- Top 10 Ethics Traps (ABA)
- 5 Professional Responsibility Traps for Young Attorneys (FindLaw's Strategist)