Take, for instance, my lawyer buddy who always takes his well-worn, heavily annotated and highlighted copy of “The Federal Civil Rules Handbook” to every deposition. It’s his long time habit, acquired after some 28 years of successful civil practice.
He likes telling lawyers to follow his lead and read the Federal Rules of Civil Procedure from cover to cover each year. He’s convinced it’s the key to his success as a litigator and the best way he knows to keep one step ahead of monkey-business employed by opposing counsel during discovery.
Or how about a law professor I know who’s long advocated lawyers should annually re-read their professional rules of conduct. He also says it’s irrelevant whether the lawyer is newly admitted or a 40 year practitioner. Re-reading the rules is the best way to stay out of trouble.
Like my buddy with his exemplary devotion to the federal rules, I think the professor’s advice is worth following. It’s too easy for lawyers to fall into the trap of forgetting the nuances, changes, and continuing requirements of all those ethical rules comprising the law of lawyering. It’s also the best way to avoid getting an unwelcome nasty gram from bar counsel in your mailbox.
I don’t know why professional liability carriers don’t provide ethics compliance checklists to their customers. If they did so, law firms could make ethical temperature checks of their policies, forms, and procedures. From marketing and advertising to intake, fee agreements, confidences, conflicts, communications, trust accounts, to pre and post engagement, it’s timely to measure and compare everyday practices to those enshrined in the ethical rules.
But were are the checklists? If you search around, you may find some guidance here and there online. But it’s disparate and unconnected. For example, the ABA has a helpful start at “Ethics Checklist for Solo and Small Firm Practice.”
Vetting fee agreements.
Take, for example, fee agreements, which all lawyers should periodically check for both statutory and ethical rule compliance. In California, non-contingency case fee agreements must be in writing if the total expense to the client, including attorney fees and costs, is expected to exceed $1,000.
In Arizona, as of December 1, 2003, certain minimum disclosures must be included in a written fee agreement if the fee is termed “earned upon receipt,” or “nonrefundable.” The lawyer must simultaneously advise the client in writing that the client “may nevertheless discharge the lawyer at any time and in that event may be entitled to a refund of all or part of the fee based upon the value of the representation.”
And in Nevada, contingency fee agreements must include in boldface, the following, “That a suit brought solely to harass or to coerce a settlement may result in liability for malicious prosecution or abuse of process.”
Sometimes, it’s easy to overlook or forget some of these requirements, especially when a longtime practitioner has been using the same fee agreement forms for years.
So why hasn’t some enterprising bar counsel member or malpractice defense firm or even a professional liability insurance carrier come up with a handy checklist for lawyers to vet their firm’s ethical compliance? Journalists have an “Ethics Checklist.” And business lawyers have long used similar approaches to assess what one lawyer, Julian Izbiky, calls the “legal health” of a small business. Izbiky uses a “Small Business Legal Audit.” Also see a “Small-Business Legal Audit Checklist.”
The Arizona State Bar’s Law Office Management Assistance Program (LOMAP) has a useful law office start-up checklist, which incorporates some ethics issues. See “Law Office Setup Checklist.doc” and “Conflicts Checking System Checklist.” But something more on point, more comprehensive is needed.
If such a checklist exists, I’ve yet to see it. Let me know if you see one.