Things a Lawyer Can and Can't Do

Ethical Things That Lawyers Can and Can't Do

Practicing Law "101" - the rules still are getting ignored. And not always by younger, inexperienced lawyers.

There are some new cases from the Ohio Supreme Court that came out today, dealing with failures to comply with ethical obligations by Ohio attorneys and they serve as a reminder to all attorneys, in and outside of Ohio. Since the same old things happen, it might be good to take a few hints from these recent suspensions.

Attorney Fee Agreements. While most states still do not require a written fee agreement in an hourly rate case, that isn't the case with a contingency fee case. Regardless of that, though, why take a chance on a misunderstanding? Last time we heard, most grievances occur for two reasons - lack of regular client communications and fee disputes. Put it in writing may not be the rule but it is the smart thing to do. 2012-Ohio-5012 (failing to use a written contingency fee agreement; failing to register for electronic filing with Court where case is pending).

Continuing Legal Education. This is a no-brainer - and you would think that it takes brains to get through law school and pass the bar exam, so this should never be a problem. But it continues to result in hundreds of suspensions every year across the country. You have to comply with your state's continuing legal education requirements. No if's. No but's. No way around it. 2012-Ohio-5004 (failing to maintain continuing legal education requirements).

Giving Legal Advice While Suspended. Another no-brainer. It is hard to understand how this one can happen by any intelligent person, let alone a lawyer, but apparently it can. 2012-Ohio-5004 (giving legal advice while suspended).

Failure to Cooperate. If you get a letter from the Bar Grievance Committee, ignore it at your own peril. Merely failing to cooperate with an investigation is, all by itself, grounds for disbarment or suspension. 2012-Ohio-5004 (failing to cooperate with investigation).

Trust Account Screw-ups. Okay, so you have a Trust Account. Now use it. And use it right. Don't just throw all the cost deposits and settlement money in and figure it out later. And messing with it? You think the bank doesn't have records? If the Bar investigator doesn't get a straight answer from you, it doesn't take much to get the bank records and figure it all out - without much any help from you at all. Keep precise and accurate Trust Account books. Balance them regularly. Know how much each client has in the Trust Account. Oh, and keep your own money out of it. 2012-Ohio-5014 (failing to reconcile Trust Account monthly; failing to maintain individual client records of Trust Account funds).

Practicing law can be fun (and profitable too), but not if you spend your time dealing with ethics complaints too.

Ronald L Burdge

www.TheLawCoach.com

Helping Lawyers do Their Best, for Over 30 Years

Ethics: Can You Agree Not to Sue the Defendant Again?

It keeps coming up. Every once in awhile you get ready to settle a case and all of a sudden, when the release comes up, the defendant wants to include something that says you (as the attorney) can't sue the defendant again for some other client in the future. Can you do that?

We first saw this issue arise nearly 20 years ago and it still comes up. Again and again. Texas attorney Steve Gardner gave a great presentation in Portland, Oregon, at the 2008 NACA-NCLC Consumer Rights Litigation Conference, on this (and other) ethical issues.

What surprises us is that this issue keeps coming up again and again.

The answer isn't that tough. But apparently it's hard to accept and it's a very common problem.

Steve says it best. "Assuming you don't have such another plaintiff, can you make this agreement? Oh, hell, no."

Steve's presentation pointed out, with specific citations, that it is unethical for an attorney to agree to limit his/her future representation of victims of the same defendant. It's unethical to make such an agreement. More importantly, it's unethical to even propose such an offer.

It's really very simple. They can't ask. You can't agree.

As Steve points out, the basic concept is that "a client has the right to choose the best lawyer for the job and by taking yourself out of the mix, you are potentially denying a prospetitve, but unknown, client that option."

One attorney does not have the right to ask another attorney to agree to a settlement that requires their opposing counsel to agree in advance not to take on another case against the same defendant. And the second attorney does not have the right to agree to it either.

This kind of settlement means you are taking money now to give up your right to practice law for a future unknown client who may need your help. It's just plain wrong.

Surprisingly, though, it still keeps coming up. Time and again, defense attorneys try to get plaintiff's attorneys to agree to it. Why? Because their client wants to take Mickey Mantle out of the game. Mickey Mantle? That's you. You know, the only competent attorney who knows the defendant and how they play the game.

So, when your opposing counsel wants to offer you a very good settlement for your client and then adds that they want to make sure you aren't going to represent someone else against their client? Just say no.

You can't do it. As Steve Garner says, "it's just that simple."

Ron Burdge
www.TheLawCoach.com
Helping Consumer Law Attorneys Help Consumers. Every day since 1978.