Ten of the Easiest Ethics Violations for Honest Lawyers

• Publication year: 1998
• Pages: 75

27 Colo.Law. 75 Colorado Lawyer 1998.

1998, August, Pg. 75. Ten of the Easiest Ethics Violations for Honest Lawyers

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75

Vol. 27, No. 8, Pg. 75

The Colorado Lawyer
August 1998
Vol. 27, No. 8 [Page 75]

Specialty Law Columns
Young Lawyers Column
Ten of the Easiest Ethics Violations for Honest Lawyers
by Forrest W. Lewis

The most often and easily violated ethics rules do not involve conduct with a mens rea. The little things have a tendency to sneak up on attorneys in an increasingly competitive and stressful profession

Promises, Promises

Promises never made are never broken. Attorneys must effectively communicate reasonable expectations at the outset of the attorney-client relationship. Telling the client you know the judge (even if you do), or "guaranteeing" a favorable settlement (or anything else), is neither wise nor productive

The practice of law has become a very competitive business, and the temptation to engage in some one-on-one marketing with a potential client can easily cause attorneys to say things they may regret later. Overstating or exaggerating experience or track record may seem harmless at the time, but it leads to angry clients and problems down the road.

Often, an attorney is faced with a good paying client who has a legal problem the attorney is not really equipped to handle. This is the time for the attorney to be honest with himself or herself as well as the client. The attorney must consider the relative complexity and specialized nature of the matter, the attorney's general experience, the attorney's training and experience in the field in question, the preparation and study the attorney is able to give the matter, and whether it is feasible to refer the matter to, or associate or consult with, an attorney of established competence in the field in question.

A lawyer offered employment in a matter in which the lawyer is not and does not expect to become so qualified should either decline the employment or, with the consent of the client, accept the employment and associate with a lawyer who is competent in the matter. In People v. Posley,1 the court held that the failure to withdraw or to associate with a competent attorney when lacking the necessary skills to pursue a client's claim warranted a ninety-day suspension.

In God We Trust, All Others Pay Cash

Attorney fees and agreements are the focus of substantial current debate and litigation. Many clients think fees are too high and that fee agreements are not really arms-length contracts. Indeed, the rules provide that fees must be reasonable. On the other hand, quoting a fee so low it precludes effective representation unless the attorney is practicing as a volunteer is not helpful to the attorney or the client. The need for investigative expenses, expert witness fees, and other costs should be anticipated, explained to the client, and discussed in the fee agreement.

A written fee agreement must always be used. The fee may be hourly, a flat fee, or a contingent fee in some cases. Flat fees with "non-refundable" retainers have come under attack in recent years. All attorney fees must be "reasonable" under Colorado Rules of Professional Conduct ("R.P.C.") 1.5. Any fee agreement, including a flat fee, is subject to review and modification based on the reasonableness requirement and the attorney's fiduciary responsibility to the client. Of course, retainers against hourly fees must always be held in the attorney's COLTAF account until earned.

An attorney cannot accept compensation from a third party for representing a client unless the client consents after consultation, and there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship.2 This problem was noted recently by the Colorado Supreme Court in People v. Rivers.3 There, the attorney's fee was paid by the alleged victim in a domestic violence case. This was a violation of R.P.C. 1.8(f).

The fruits of criminal activity are not acceptable as compensation for legal services. Asking about the source of the money is not always enough. In People v. Zelinger,4 the attorney took a car as payment for his services. The car turned out to be stolen. The attorney had asked the client if the car was stolen and received a negative answer. The court concluded that under the circumstances, however, the attorney should have made further inquiry, and the failure to do so was an ethical violation.

Tell 'Em I'm Not Here; I'll Call 'Em Later

One of the most frequent complaints is the failure to return client phone calls, answer client letters, and communicate the status of the case. Often, attorneys are slow to return calls because they have not done what they said they would do. They do not want to tell the client they have not done their work.

If this is the reason an attorney is slow to return calls or answer mail, the attorney has probably violated R.P.C. 1.3, "a lawyer shall act with reasonable diligence and promptness in representing a client. A lawyer shall not neglect a legal matter entrusted to that lawyer," and R.P.C. 1.4, "a lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. . . ." The commentary to R.P.C. 1.3 concludes that no professional shortcoming is more widely resented than procrastination.

In December 1997, the Colorado Supreme Court disbarred an attorney who had practiced for twenty-four years for, inter alia, the negligent representation of a client in a...