Avoid Santa’s ‘Naughty’ list this year

Lawyers hoping to find goodies in their stocking should take stock of whether they have been “nice” lawyers in 2021. When Santa makes his list and checks it twice, consider these behaviors so you don’t end up on the Naughty List

Naughty: Uncivil Conduct

The practice of law can be adversarial in nature. Lawyers can disagree with each other and, at times, take very different positions. However, as jurisdictions nationwide are renewing their emphasis on lawyer civility, it is important for lawyers to understand that there is a fine line between simply advocating for your client and, on the other hand, becoming consumed in the adversarial nature of the work. A shortcut to being on the Naughty List is treating opposing parties or counsel without the civility required by the profession.

In many jurisdictions, attorneys take an oath of admission that contains pledges to conduct oneself with civility. California also has enacted the “California Attorney Guidelines of Civility and Professionalism” to rein in bad behavior by lawyers.

Examples of lawyers behaving badly routinely make the legal news. Some read about the lawyer in Florida who was suspended from the practice of law for two years for, among other things, repeatedly disparaging opposing counsel on numerous occasions both verbally and in writing. That lawyer criticized his opposing counsel’s motions as “laughable and scurrilous,” before renewing a pledge to continue aggressive behavior: “I look forward to litigating the issues you highlight and recovering the fees I bill my client from you PERSONALLY. I think I have never litigated with an attorney who is as disingenuous as you. This really is fun, and so from that standpoint, I thank you.”

Attorneys who do not act in compliance with this oath — by engaging in name-calling, threats or other needlessly aggressive behavior — may find themselves not only with a lump of coal but also with a critique from a judge or the bar.

Nice: Maintaining Confidentiality

The confidentiality inherent in the attorney-client relationship contributes to the overall trust between lawyers and clients. Although many lawyers have familiarity with the protections of the attorney-client privilege, not all are aware that confidentiality is typically broader than the privilege. Rule 1.6 of the California Rules of Professional Conduct and Business and Professions Code Section 6068 call on lawyers to maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client, unless the client gives informed consent or one of the narrow exceptions applies.

There have been disciplinary cases around the country where lawyers 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, a lawyer may violate Rule 1.6 (a) “when a lawyer 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 impliedly authorized to carry out the representation.”

Being aware of the obligation of confidentiality — and considering the parameters of the rules — can help attorneys stay on the “Nice” List.

Naughty: Not Treating Client Funds Properly

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

The rules are strict in this regard. The misuse of trust funds may result in an ethics charge against the lawyer with discipline as severe as disbarment. Because the rules can be complicated, but the risks great, many attorneys will take steps to avoid violating the requirements of this rule or to take steps to minimize the risk of accidental violation.

Nice: Mentoring Team Members

Under Rule 5.1, a law firm partner or managerial lawyer has an ethical duty to supervise junior lawyers. Beyond this ethical obligation to help ensure that junior lawyers are meeting the ethical standards of the profession, supervising lawyers also can help the next generation of practitioners by creating a supportive relationship through mentoring.

Mentorships between senior and more junior attorneys are often advantageous to both the mentor and mentee. Mentoring can promote long-term loyalty, job satisfaction and retention or development of professional skill in a mentee. Mentoring also can lead to better client services and the expansion of opportunities for those typically underrepresented in the legal profession.

Naughty: Not Checking Conflicts

Lawyers who are not careful with conflicts could be taking on unnecessary risk. The new year is a good time for a firm to take stock of its conflict procedures to make sure they are in compliance with the rules and that they are actually being followed. One potentially “naughty” conduct includes failing to update conflicts based on new parties or other developments. For example, lawyers who fail to pay close attention to potential conflicts associated with third party discovery may spend their holidays explaining to a client why they served a subpoena on the client without advance notice.

Nice: Taking Advantage of Continuing Legal Education

The law is constantly changing. Even lawyers with decades of experience can continue to refine their skills and stay up-to-date on recent developments in the law by participating in continuing legal education courses offered by many different providers.

Many states, including California, require that lawyers complete CLE courses in order to maintain good standing with the bar. Specifically, California requires that lawyers complete 25 hours of Minimum Continuing Legal Education every three years, which must include certain types of CLE credits (e.g., at least four hours of legal ethics). But too many lawyers go through the motions when it comes to fulfilling such requirements, rather than taking full advantage of CLEs. Lawyers that identify courses most relevant to their practice, and then fully engage in those courses, can sharpen their skills and potentially discover new ways to expand their practice.

We hope you are enjoying your holidays and that you make the “Nice” List in 2021! 