CHARTER 7 Ethics

• Jurisdiction: United States

CHARTER 7 Ethics

Bankruptcy lawyers' professional conduct is regulated in a few ways. Generally, there are three sources of standards that govern your (as well all lawyers') conduct as a bankruptcy lawyer. The first is the ethical and disciplinary rules adopted by the jurisdiction(s) in which you practice. These rules are not just aspirational; they have the force of law, and you can be disciplined for failing to follow them. Such discipline can include monetary or other sanctions imposed by a court before which you are appearing or punishment imposed through a disciplinary proceeding, which can range from a private reprimand to disbarment.

The second source of standards governing your conduct is general law. This so-called "other law" includes common law, statutory law (such as the Bankruptcy Code and the Bankruptcy Rules), and regulations that are applicable to everyone. Besides bankruptcy law, contract law, tort law and criminal law, among others, fall within "other law." You can face civil and/or criminal liability if your conduct violates any of these other laws.

The third and final source of standards governing your conduct is your own moral code. While you cannot be disciplined or face liability for violating your personal moral code, you should take just as much care to not violate it as you would to not violate the ethical and disciplinary rules adopted by your jurisdiction or other laws. Maintaining your "soul" (whatever that means to you) as an attorney is important. You should never do anything that you find morally opposable.

There are five ways that these standards of conduct could be enforced against you. First, your local bar organization could commence disciplinary action against you. A second way is that one of your clients could bring a private action for legal malpractice against you. Third, a court that you are appearing before could impose direct controls or sanctions against you. Fourth, you could be subject to civil and/or criminal liability for your actions under "other law," such as tort law and criminal law. Finally, you and your peers could impose self-censorship in some circumstances, such as when you are asked to do something you find morally objectionable.

Now, you should not worry too much about having an enforcement action being brought against you. If you follow the applicable standards, you will be fine. But avoiding being punished should not be the only reason that you want to follow these three standards of conduct. You do not want to gain a reputation for being dishonest or incompetent. You should always remember that a good reputation takes a lifetime to build, but only a moment to destroy. Once people start to think of you as dishonest or incompetent, you will find that it is difficult to change their minds.

This is especially true for a bankruptcy lawyer because the bankruptcy bar is small, and you will likely see the same lawyers over and over again. As you practice, you will get to know those lawyers you can trust and those you cannot. If you get a bad reputation, you will likely find, among other things, that judges and other lawyers will be less likely to extend you professional courtesies (such as adjournments or extensions), your colleagues will not refer you business, and law firms will not hire you. Ultimately, not only is being ethical the right thing to do, it is good for business and your career.

A. Privilege/Work Product (Electronic Communications)

Attorney/client privilege and attorney work product are evidentiary doctrines that are created by statute in every jurisdiction in the country. On the one hand, attorney/client privilege protects certain communications between a client and his lawyer and only extends to information given for the purposes of obtaining legal advice. Business advice is not covered. On the other hand, attorney work product protects certain confidential documents prepared in contemplation of litigation and must be prepared by or under the direction of an attorney for the litigation. Work-product protection might not protect drafts, internal law firm communications, communications regarding negotiations on deals or contracts, or negotiating strategies on deals or contracts. Importantly, both doctrines only protect the source of the information (i.e., the privileged communication or work-product) from being disclosed through discovery; the underlying information contained in those documents or communications is not protected from being discovered through other sources.

As a young attorney, especially at a small firm, you might be asked to send privileged communications and/or attorney work product via email. It is important to take certain steps to protect an accidental waiver of either doctrine. Not only do you have a duty to do so under Rule 1.6 of the Model Rules of Professional Conduct,⁶ practically speaking you do not want to have to explain to the partner that you caused either doctrine to be waived. Based on the Model Rules of Professional Conduct and case law, the following are practical tips you may use to preserve attorney/client privilege and work-product doctrine protection for your clients.

1. First, always assume that any email (or any other communication such as a text, a paper letter, a memo, or a draft document) may appear before a court and

...