Legal Ethics - Roy M. Sobelson

• Publication year: 1996

Legal Ethicsby Roy M. Sobelson^*

I. Introduction

The survey period¹ was relatively quiet in terms of judicial and legislative developments in the Legal Ethics area. Nevertheless, it may prove to be an important transition period in the history of the State Bar of Georgia, insofar as lawyer discipline and consumer assistance is concerned. On June 1, 1995, the State Bar of Georgia began an experimental Consumer Assistance Program, sometimes known as "Central Intake." The reason for the program was simple. History has shown that the vast majority of complaints about lawyers do not raise disciplinary² issues at all.³ In the past, such nondisciplinary complaints were summarily dismissed, leading to substantial public disillusionment and dissatisfaction with the lawyer discipline process.⁴

The purpose of the Consumer Assistance Program is to resolve as many nondisciplinary complaints as possible through conciliation,⁵ negotiation, and education. Those matters that cannot be readily resolved may be referred to other ancillary services or agencies, such as Fee Arbitration,⁶ the Lawyer Assistance Program,⁷ the Clients' Security Fund,⁸ lawyer referral services, and the like.⁹

Thus far, the evidence indicates that the program is having some positive effects. From June 1, 1995 to May 31, 1996, the Consumer Assistance Program handled nearly four thousand telephone calls, a substantial portion of which raised nondisciplinary complaints.¹⁰ While a substantial number of the callers were eventually referred to the Office of the General Counsel to file disciplinary complaints, over sixty percent of the cases were actively handled by Central Intake in one way or another.¹¹ Because these cases comprise matters that were once summarily dismissed for failure to allege a disciplinable offense, complainants are getting much better service than ever before. What is especially encouraging is the fact that twenty-six percent of the complaints required no routing at all, suggesting that the matters were "resolved" quickly and informally¹² by Consumer Assistance Program personnel.

This program may also have salutary effects on the workload and efficiency of the disciplinary system and disciplinary counsel. Both the requests for grievance forms and the number of grievances actually filed have decreased substantially since the implementation of the program.¹³ Whether these trends will continue or improve remains to be seen. ¹⁴

II. Formal Advisory Opinions

During the survey period, the Georgia Supreme Court issued three new Formal Advisory Opinions ("FAOs").¹⁵ All of them seem rather straightforward and should surprise no one paying close attention to our Code of Professional Responsibility¹⁶ and Standards.

FAO 95-1¹⁷ presented the question of whether a lawyer could participate in a fee collection program which purchases client fee bills and collects the fees from the clients. The methods of processing and the percentage fee of the collection firm depend on the client's creditworthiness. Two specific features of the program stand out: (i) the client must sign a warranty of the services provided; and (ii) a participating lawyer must share with the program information about each client's case, as well as information about the client's credit-worthiness and other personal matters. Obviously, the entire arrangement threatens a lawyer's obligations of confidentiality and loyalty, and the court strongly disapproved of it on those grounds.¹⁸

Concentrating primarily on the lawyer's responsibilities as officer of the court and fiduciary, the supreme court stated:

The basic vice of the program is that it . . . requir[es] the lawyer to dilute his or her role as fiduciary . . . [because it] requires the client to sign a warranty as to the services rendered, which purports to contract away the client's legal right to complain or to dismiss the lawyer.¹⁹

Although it placed less emphasis on concerns about confidentiality, the court acknowledged that participation in the program "entails the possible violation of at least six standards [of conduct]," including Standard 28.²⁰

FAO's 96-1 and 96-2 share three similarities. First, they both acknowledge that the practice in question has been brought to the attention of the State Disciplinary Board.²¹ Presumably, the Investigative Panel has seen a number of complaints raising these issues. Second, the practices evaluated in both FAO's have the same purpose in mind—to protect lawyers from clients' claims of wrongdoing, whether through malpractice suits or Bar complaints. Finally, like FAO 95-1, they indicate at most that the questioned behavior may violate various Standards.

FAO 96-1²² discusses whether an attorney may ethically require a client who desires to discharge the lawyer to release the lawyer from all claims, including disciplinary complaints, in order to obtain his files and a waiver of any liens the lawyer may wish to assert. The opinion disapproves of this practice by relying upon two principles: (i) a lawyer should represent a client competently; and (ii) a lawyer should exercise independent professional judgment on behalf of a client.²³ As to competence, the court relies upon EC 6-6²⁴ and DR 6-102,²⁵ both of which clearly prohibit such a practice; but of course they are aspirational only, not enforceable.²⁶ As to independence of judgment, the court cites EC 5-1,²⁷ which does not directly address the issue, but at least makes it clear that a lawyer should not let his own interests interfere with or compromise the interests of his client.

The opinion then goes on to state that the practice potentially violates both Standard 22(b)²⁸ and FAO 87-5,²⁹ in which the court addressed the conflict between an attorney's duty upon discharge to avoid any foreseeable prejudice to his client and the right to assert a lien on a client's papers.³⁰ There, the court concluded that "an attorney's ethical obligation not to cause prejudice to his or her client is paramount over rights under the lien statute."³¹ In this instance, it is hard to understand why forcing a client to release all claims to get one's file back is only a potential violation of the Standards and FAO. It would seem that releasing all rights to sue one's lawyer for malpractice, demand fee arbitration, or complain to the State Bar would be a fortiori prejudicial, and such a forced release should be per se unethical.

FAO 96-2³² evaluates a very similar practice in which lawyers included in all correspondence with clients a form notice that the client had a specified period of time to notify the lawyer of any dissatisfaction with the lawyer's services or waive any malpractice claim. Emphasizing the same principles as FAO 96-1, the court again found that the practice may violate Standards 4³³ or 30,³⁴ although the opinion offers no further explanation.

Both of these practices clearly violate the spirit, if not the letter, of the rules. However, neither of them, according to the court, clearly violates any specific Standard. An interesting question is raised by the fact that the Disciplinary Board, as investigator and sanctioning body for errant attorneys, brought these questions before the Formal Advisory Opinion Board: Just what force do these opinions have? To state it another way, if a lawyer's actions violate the pronouncements in a FAO but not any Standards, is that lawyer subject to discipline? The answer appears to be no.³⁵ So now what? Lawyers are now on notice that these practices are contrary to the ECs, DRs, existing and new FAOs, and that they potentially violate the Standards; yet lawyers can apparently continue to engage in them with impunity. What is wrong with this picture?

With respect to Opinion Request No. 93-R3B, the court issued an order which "neither adopts nor rejects" the opinion proposed by the Formal Advisory Opinion Board.³⁶ Since the court has the authority to adopt a proposed opinion as submitted, amend it, or hold it indefinitely, their response is tantamount to rejecting the opinion. That is too bad, because the issue raised is both interesting and important. It seeks to determine the appropriate course for counsel appointed to represent an indigent criminal defendant and who then discovers that the client is no longer, or never was, indigent.

The opinion first correctly concluded that while the information regarding indigent status may or may not be a "confidence,"³⁷ it is certainly a "secret."³⁸ In discussing the exceptions to secrecy, the opinion noted that treating the court's standing order to attorneys to determine indigence as an exception³⁹ could eviscerate confidentiality completely,⁴⁰ and thus the too facile reliance upon that exception is not acceptable. Further addressing that same point, the opinion concluded that deputizing the lawyer to determine indigence creates an irreconcilable conflict between the lawyer's duty of confidentiality and the lawyer's responsibilities to the court.⁴¹

The opinion then examined the exception that allows an attorney to reveal "the intention of his client to commit a crime."⁴²

Assuming arguendo that facts that come to the attorney's attention establish the intention of the client to commit a crime [such as theft of services], Standard 28 merely permits the disclosure of the secret by the attorney. It does not require disclosure. The attorney must balance the harm caused by nondisclosure against the attorney's professional, fiduciary responsibility to the client .... [T]he better course . . . would be to comply with the aspiration of Canon 4 and preserve the secret of the client.⁴³

The opinion also took note of the fact that appointments usually result in lower fees than private hires, meaning that disclosure could work to the advantage of the lawyer and the disadvantage of the client, thus making disclosure inappropriate.⁴⁴ In the end, the opinion advised that the lawyer should:

advise the client of the wrongfulness of that conduct, and should advise the client...