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self-study / Legal Ethics

Dec. 11, 2023

How attorneys can end up on Santa's 'nice' list

Alanna G. Clair

Partner, Dentons US LLP

Email: alanna.clair@dentons.com

Shari L. Klevens

Partner, Dentons US LLP

Phone: (202) 496-7500

Email: shari.klevens@dentons.com

As 2023 draws to a close, the holiday season provides a good opportunity to reflect on this past year. Did you win that motion for summary judgment, get that much-deserved bonus, or secure that new client? Or did you find that this year left you only with that proverbial lump of coal in your legal stocking?

If you find yourself covered in soot, consider the following tips so you end up on the "Nice" list next year when Santa makes his list and checks it twice.

Maintaining client confidences - Nice

The confidentiality inherent in the attorney-client relationship is one of the bedrock principles of the legal profession. It furthers the overall trust between attorneys and clients. While many attorneys are familiar with the protections afforded by the attorney-client privilege, the duty of confidentiality is typically broader than the privilege. Rule 1.6 of the California Rules of Professional Conduct and Section 6068 of the Business and Professions Code require attorneys to maintain in confidence all information gained in the professional relationship with a client, even after the attorney-client relationship has been terminated, unless the client gives informed consent or an exception authorizes disclosure.

There have been disciplinary cases around the country where attorneys have gotten in trouble for disclosing too much information online, whether in online review websites, blogs, Facebook posts, or other electronic communications. As ABA Formal Opinion 480 notes, an attorney may violate the duty to maintain client confidentiality when he or she "participates in public commentary that includes client information, if the lawyer has not secured the client's informed consent" or the disclosure is not otherwise authorized by law.

Although there is a broad range of conduct that may still be permissible under the ABA Model Rule 1.6 - such as disclosures that are "impliedly authorized" - California's Rule 1.6 is even more restrictive.

Appreciating the professional obligations to maintain client confidences and understanding the parameters of those obligations can help attorneys stay on this year's "Nice" list.

Misusing client funds or property - Naughty

Rule 1.15 of the California Rules of Professional Conduct requires attorneys to hold funds and other client property that the attorney possesses in connection with a representation separate from the attorney's own funds or other property. The rules have specific guidelines regarding the keeping of funds, safeguarding of property, management of accounts, and record-keeping obligations.

Penalties for violating these obligations can be severe. The misuse of client funds or property may result in a bar grievance against the attorney, which could ultimately result in disbarment. There was substantial news coverage this year about one high-profile California attorney who was disbarred and indicted by a federal grand jury for allegedly stealing more than $15 million of client settlement proceeds and attempting to conceal the theft by lying to clients.

Because the risks are great and the rules can be complicated, many practitioners implement measures to avoid violating these requirements and minimize the risk of inadvertent violations.

Providing mentorship and support to team members - Nice

Under Rule 5.1 of the California Rules of Professional Conduct, attorneys with managerial authority in a law firm or direct supervisory authority over junior attorneys have an ethical duty to supervise those junior attorneys and make reasonable efforts to ensure they comply with the rules. In addition to this ethical obligation to help ensure junior lawyers comply with the profession's standards, supervising attorneys can provide mentorship and support to the next generation of legal practitioners.

Mentorships between experienced attorneys and their more "green" counterparts benefit both the mentee and the mentor. Indeed, mentoring can help the mentee develop professional skills, promote long-term loyalty to the mentor, improve the mentee's job satisfaction, and lead to greater retention of talented junior attorneys. Mentoring also can lead to better client services and the expansion of opportunities for those typically underrepresented in the legal profession.

Being unprofessional and uncivil - Naughty

The practice of law can often seem adversarial in nature. But as jurisdictions nationwide continue to emphasize the importance of civility amongst attorneys, attorneys would do well to understand that there is a fine line between zealously advocating for a client and launching unprofessional attacks on opposing parties and counsel alike.

Examples of attorneys behaving badly routinely make the legal news. In one instance, a California attorney found himself in hot water after sending hundreds of emails with discriminatory remarks and profane language to opposing counsel during heated settlement negotiations. In another example, a Florida attorney was suspended from the practice of law for two years after repeatedly disparaging opposing counsel, including criticizing his opponent's motions as "laughable and scurrilous," calling opposing counsel disingenuous, and threatening to recover his fees from opposing counsel personally.

Thus, one way to avoid winding up on the "Naughty" list this year is to treat opposing counsel and adversaries with the civility required by the profession. In order to be admitted to practice law in most jurisdictions, attorneys typically take an oath of admission that contains pledges to conduct oneself with civility. In California, an attorney must swear that he or she "will strive to conduct [his or herself] at all times with dignity, courtesy, and integrity." The California Bar has also adopted Guidelines of Civility and Professionalism because "[u]ncivil or unprofessional conduct not only disserves the individual involved, it demeans the profession as a whole and our system of justice." To that end, the California Bar proposed amendments to the rules this summer to clarify that California attorneys have the authority to conduct themselves with civility, including agreeing to reasonable requests of opposing counsel or self-represented parties, even if their client directs otherwise, so long as the lawyer does not prejudice the rights of their client.

Attorneys who do not act in compliance with their civility obligation may find themselves not only with a lump of coal but also with a critique from a judge or the bar. Indeed, those who engage in name-calling, issue threats, or other needlessly aggressive behavior punch a one-way ticket to the "Naughty" list.

Happy holidays!

#1409

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