HOW TO KEEP OUT OF THIS MESS
Table of Contents
I. Who Are We?
II. Particular Rules of Interest
III. What Do I Do When I Get a Letter From
The Office of Disciplinary Counsel?
IV. Organization and Structure of the
Commission on Lawyer Conduct
V. Cases of Interest
VI. Sample Engagement Letters
Rules of Professional Conduct
Rule 407
Preamble: A Lawyer’s Responsibilities
A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.
As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client's legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealing with others. As intermediary between clients, a lawyer seeks to reconcile their divergent interests as an advisor and, to a limited extent, as a spokesperson for each client. A lawyer acts as evaluator by examining a client's legal affairs and reporting about them to the client or to others.
In all professional functions a lawyer should be competent, prompt and diligent. A lawyer should maintain communication with a client concerning the representation. A lawyer should keep in confidence information relating to representation of a client except so far as disclosure is required or permitted by the Rules of Professional Conduct or other law.
A lawyer's conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer's business and personal affairs. A lawyer should use the law's procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer's duty, when necessary, to challenge the rectitude of official action, it is also a lawyer's duty to uphold legal process.
As a public citizen, a lawyer should seek improvement of the law, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance, and should therefore devote professional time and civic influence in their behalf. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest.
Many of a lawyer's professional responsibilities are prescribed in the Rules of Professional Conduct, as well as substantive and procedural law. However, a lawyer is also guided by personal conscience and the approbation of professional peers. A lawyer should strive to attain the highest level of skill, to improve the law and the legal profession and to exemplify the legal profession's ideals of public service.
A lawyer's responsibilities as a representative of clients, an officer of the legal system and a public citizen are usually harmonious. Thus, when an opposing party is well represented, a lawyer can be a zealous advocate on behalf of a client and at the same time assume that justice is being done. So also, a lawyer can be sure that preserving client confidences ordinarily serves the public interest because people are more likely to seek legal advice, and thereby heed their legal obligations, when they know their communications will be private.
In the nature of law practice, however, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict between a lawyer's responsibilities to clients, to the legal system and to the lawyer's own interest in remaining an upright person while earning a satisfactory living. The Rules of Professional Conduct prescribe terms for resolving such conflicts. Within the framework of these Rules many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules.
The legal profession is largely self-governing. Although other professions also have been granted powers of self-government, the legal profession is unique in this respect because of the close relationship between the profession and the processes of government and law enforcement. This connection is manifested in the fact that ultimate authority over the legal profession is vested largely in the courts.
To the extent that lawyers meet the obligations of their professional calling, the occasion for government regulation is obviated. Self-regulation also helps maintain the legal profession's independence from government domination. An independent legal profession is an important force in preserving government under law, for abuse of legal authority is more readily challenged by a profession whose members are not dependent on government for the right to practice.
The legal profession's relative autonomy carries with it special responsibilities
of self-government. The profession has a responsibility to assure that its
regulations are conceived in the public interest and not in furtherance of
parochial or self-interested concerns of the bar. Every lawyer is responsible
for
observance of the Rules of Professional Conduct. A lawyer should also aid
in securing their observance by other lawyers. Neglect of these responsibilities
compromises the independence of the profession and the public interest which
it serves.
Lawyers play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship to our legal system. The Rules of Professional Conduct, when properly applied, serve to define that relationship.
II. Particular Rules of interest
Rule 1.1 Competence - A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
From the comments:
A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar. A lawyer may accept representation where the requisite level of competence can be achieved by reasonable preparation. Competent representation can also be provided through the association of a lawyer of established competence in the field in question.
To maintain the requisite knowledge and skill, a lawyer should engage in continuing study and education.
Rule 1.2 Scope of Representation - A lawyer shall abide by a client’s decision concerning the objectives of representation, . . . and shall consult with the client as to the means by which they are to be pursued.
(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counselor assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.
(e) When a lawyer knows that a client expects assistance not permitted by the Rules of Professional Conduct or other law, the lawyer shall consult with the client regarding the relevant limitations on the lawyer's conduct.
Rule 1.3 Diligence - A lawyer shall act with reasonable diligence and promptness in representing a client.
From the comments:
Inconvenience does not count as an excuse. Control and manage your work load so attention can be given to the file and the requisite work required.
Procrastination can, at the least, cause unnecessary anxiety and lead your client to doubt your trustworthiness. In extreme cases, procrastination can prejudice your client’s rights. (i.e., transfer of deeds and property statute of limitations).
If a lawyer’s employment is limited to a specific matter, the relationship terminates when the matter has been resolved. If any doubt exists as to whether the client/lawyer relationship continues to exist, the lawyer should clarify that preferably in writing.
Rule 1.4 Communication
(a) A lawyer shall keep a client reasonably informed about the status of
a matter and promptly comply with reasonable request for information.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
This is a major source of complaints before the Commission.
Advise client about the estimated time a particular action will take at the outset of representation. Communicate any settlement offer. Record in your file by computer or otherwise all contacts with client, whether by telephone or in person; and if possible, a brief notation of the content of that contact (follow-up conversation with confirmation letters, if possible.)
Speaking plainly to the client without using complex legal terminology. ( i.e., Pendente lite QUADRO).
At the outset of representation, explain to your client how your office functions and introduce them to your staff and partners. Explain the responsibilities of the staff members who will be working on the file. This will avoid the complaint that, “I never got to speak with my lawyer; I just talked to his paralegal.”
Explain that the use of paralegal's and staff are a means by which you want to become accessible to them to answer any questions they may have. Due to the busy nature of your practice, you may not be immediately available when they call.
Include in your engagement letter and/or contract that you may have one of your partners or associates participate in some portion of the prosecution of the case and any fee change associated.
Rule 1.5 - Fees - A lawyer’s fee shall be reasonable.
Up-front understanding and agreement about fees is essential. You must spend
time explaining your fee structure, just as you explain your office operation.
Reduce it to writing, confirm it with an engagement letter signed by the
client.
The Fee Dispute Board referred to may also be included in the contract. Remember
you are dealing with clients who are in the midst of an emotional upheaval.
Often these people are not happy with themselves, their spouses, friends
or family. At the end of the litigation, there is a high likelihood, their
frustration will be directed towards you, particularly if the results were
not quite what they anticipated. So, the need for up-front protection cannot
be underestimated.
If you obtain an excellent result, it is the inclination of many clients to forget how worried they were when you began to represent them. They will take the, “I could have done that myself” attitude and will likely complain about paying the remainder of your fee.
Rule 1.6 Confidentiality of Information - (Relation to Rule 1.2 - Scope
of Representation)
(a) A lawyer shall not reveal information relating to representation of a
client unless the client consents after consultation, except for disclosures
that are impliedly authorized ion order to carry out the representation,
and except as stated in paragraph (b).
(b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:
(1) To prevent the client from committing a criminal act; or
(2) To establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client.
Rule 1.7 Conflict of Interest: General Rule
(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
(1) The lawyer reasonably believed the representation will not adversely affect the relationship with the other client; and
(2) Each client consents after consultation.
(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless:
(1) The lawyer reasonably relieves the presentation will not be adversely affected; and
(2) The client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.
Rule 1.8 Conflict of Interest: Prohibited Transactions
(a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:
(1) The transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner which can be reasonably understood by the client;
(2) The client is given a reasonable opportunity to seek the advice of independent counsel in the transaction; and
(3) The client consents in writing thereto.
(b) A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client consents after consultation, except as permitted or required by Rule 1.6 or Rule 3.3.
(c) A lawyer shall not prepare an instrument giving the lawyer or a person related to the lawyer as parent, child, sibling, or spouse any substantial gift from a client, including a testamentary gift, except where the client is related to the done.
(d) Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation.
(e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that:
(1) A lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and
(2) A lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.
(f) A lawyer shall not accept compensation for representing a client from one other than the client unless:
(1) The client consents after consultation;
(2) There is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and
(3) Information relating to the representation of a client id protected as required by Rule 1.6.
(g) A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client consents after consultation, including disclosure of the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement.
(h) A lawyer shall not make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless permitted by law and the client is independently represented in making the agreement, or settle a claim for such liability with an unrepresented client or former client without first advising that person in writing that independent representation is appropriate in connection therewith.
(i) A lawyer related to another lawyer as parent, child, sibling or spouse shall not personally represent a client in a representation directly adverse to a person who the lawyer knows is represented by the other lawyer except upon consent by the client after consultation regarding the relationship.
(j) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may:
(1) Acquire a lien granted by law to secure the lawyer’s fee or expenses; and
(2) Contract with a client for a reasonable contingent fee in a civil case.
(k) In any adversarial proceeding, a lawyer shall not serve as both an advocate and an advisor to the hearing officer, trial judge or trier of fact. A lawyer serving as an advocate in a particular matter shall not directly or indirectly engage in ex parte communication with the hearing officer, trial judge or trier of fact concerning the proceeding.
Rule 1.9 Conflict of Interest: Former Client
(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interest are materially adverse to the interests of the former client unless the former client consents after consultation.
(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client.
(1) Whose interests are materially adverse to that person; and
(2) About whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client consents after consultation.
(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
(1) Use information relating to the representation to the disadvantage of the former client except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client, or when the information has become generally known; or
(2) Reveal information relating to the representation except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client.
Rule 4.3 - Dealing with Unrepresented Person - You must let them know that you are an advocate for your client, and if it is not clear, you must go the extra mile to correct any misunderstanding.
Rule 5.1 Responsibility of Partner or Supervisory Lawyer - “The buck stops here.” You are responsible for your staff and associate lawyer. You cannot plead ignorance.
Liable for ordering any behavior or radifying any behavior.
Having affirmative duty to mitigate and correct action after discovery. (See
In Re: Anonymous - 552 S.E.2d 10 (2001), Op. No. 25346.
Rule 1.5 Safekeeping Property
(a) A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. Funds shall be kept in a separate account maintained in the state where the lawyer’s office is situated, or elsewhere with the consent of the client or third person. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of six years after termination of the representation.
(b) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.
(c) When in the course of representation of a lawyer is in possession of property in which both the lawyer and another person claim interests, the property shall be kept separate by the lawyer until there is an accounting and severance of their interests. If a dispute arises concerning their respective interests, the portion in dispute shall be kept separate by the lawyer until the dispute is resolved.
III. What Do I Do When I Get A Letter From
The Office Of Disciplinary Counsel?
1. Do not throw it in the trash and convince yourself that Henry Richardson
is inviting you to make a contribution to his law school class reunion fundraising
drive.
2. Sit down in a quiet place away from your staff.
3. Wait for your heart to drop back from your throat to its previous location.
4. Take an aspirin to lower the spike in your blood pressure.
5. Open the letter and read it slowly.
6. DOCKET THE TIME YOU ARE GIVEN TO REPLY AND TAKE IMMEDIATE STEPS TO RESPOND
TO THE LETTER. (See In Re: Matter of Treacy - Op. No. 21682, 290 S.E.2d 240
(1982). HOW YOU REPLY TO A LETTER OF INQUIRY GIVES AN IMPRESSION OF HOW YOU
HANDLE YOUR LAW PRACTICE. FAILING TO RESPOND TO A LETTER CAN IN AND OF ITSELF
BE A VIOLATION. DON’T MAKE A BAD SITUATION WORSE! (See In Re: Matter
of Treacy. Put yourself in this Disciplinary Counsel’s position. Do
you like writing a letter to someone and not getting a response?) Depending
on the date and nature of the matter you handled, a request for an extension
can be made. This request will not be unreasonably denied by the Disciplinary
Counsel. Remember, Henry Richardson was a practicing attorney for many years
before he took the job as Disciplinary Counsel.
7. Cooperate or hire attorney, depending on nature of complaint.
IV. Organization and Structure Of The Commission On Lawyer Conduct Rule 413
General Information:
The Commission is comprised of eight (8) panels of lawyers from around the state who are rotated into either Investigative or Hearing panels. Obviously, a member cannot serve in both capacities on the same matter.
Investigative Panel - Rule 4(f) - The investigative panel acts as “grand jury” and many cases can be resolved without going any further. (Preliminary or Full Investigation status determines authority - see below).
Hearing Panel - Rule 4(g) - After formal charges have been filed, pleadings actually been exchanged and “discovery” completed, the case is set for a hearing before the full hearing panel or any sub-panel thereof. The hearing panel also rules on motions made by either side. After the hearing is concluded, the hearing panel files a written report making findings and recommendations to the Supreme Court as to sanctions, if any. The Supreme Court makes the final determination as to sanctions.
Disciplinary Proceedings (Rule 19 - Screening and Investigation)
(a) Disciplinary Counsel shall evaluate all information coming to his attention by complaint or from other sources that allege lawyer misconduct or incapacity. If the information would not constitute misconduct if it were true, disciplinary counsel shall dismiss the complaint or, if appropriate, refer the matter to another agency.
(b) Preliminary Investigation - Disciplinary counsel may conduct interviews and examine evidence to determine whether grounds exist to believe the allegations of a complaint. No subpoenas can be issued at this stage. Disciplinary Counsel can ask for a lawyer to respond to the contents of the complaint. If determining evidence to support the allegations exists, Disciplinary Counsel goes before an investigative panel and may recommend a full investigation.
The investigative panel reviews the recommendation and can either dismiss, refer or issue a letter of caution, or authorize a full investigation.
(c) Full Investigation - After a full investigation has been authorized and completed, disciplinary counsel can recommend several ways of disposition.
(A) Dismissal
(B) Admonition LOC or deferred disciplinary agreements
(C) Recommend filing formal charges
(D) Seek incapacity
(E) Refer to appropriate agency
(F) Order a stay
(d) Disposition After Full Investigation
(2) The investigative panel may adopt, reject or modify the recommendations of disciplinary counsel. If the investigative panel finds no violation or a violation pursuant to Rule 7 for which the imposition of a sanction is not warranted, it may dismiss or issue a letter of caution. If the investigative panel finds that there is reasonable cause to believe the lawyer committed misconduct,
(A) it may propose an admonition or deferred discipline agreement to the lawyer and, if the lawyer consents, it shall admonish the lawyer or implement the deferred discipline agreement; in addition, it may assess costs against the lawyer as a condition of the private admonition or deferred discipline agreement, if the lawyer does not consent to the admonishment or the deferred discipline, the investigative panel may direct disciplinary counsel either to file formal charges or dismiss the complaint;
Burden of Proof - The Office of Disciplinary Counsel has the burden of proving the allegations by clear and convincing evidence. (Rule 8).
General Provisions - Rule 7(a) - Grounds for Discipline
(a) Grounds for Discipline. It shall be a ground for discipline for a lawyer to:
(1) violate or attempt to violate the Rules of Professional Conduct, Rule 407, SCACR, or any other rules of this jurisdiction regarding professional conduct of lawyers;
(2) engage in conduct violating applicable rules of professional conduct of another jurisdiction;
(3) willfully violate a valid order of the Supreme Court, Commission or panels of the Commission in a proceeding under these rules, willfully fail to appear personally as directed, willfully fail to comply with a subpoena issued under these rules, or knowingly fail to respond to a lawful demand from a disciplinary authority to include a request for a response or appearance under Rule 19(b)(1), (c)(3) or (c)(4);
(4) be convicted of a crime of moral turpitude or a serious crime;
(5) engage in conduct tending to pollute the administration of justice or to bring the courts or the legal profession into disrepute or conduct demonstrating an unfitness to practice law;
(6) violate the oath of office taken upon admission to practice law in this state;
(7) willfully violate a valid court order issued by a court of this state or of another jurisdiction
(8) employ a person in violation of Rule 34.
(b) Sanctions. Misconduct shall be grounds for one or more of the following sanctions:
(1) disbarment;
(2) suspension for an indefinite period from the office of attorney at law;
(3) suspension for a definite period from the office of attorney at law. The period of the suspension shall not exceed 2 years and shall be set by the Supreme Court;
(4) public reprimand;
(5) admonition by an investigative panel of the Commission with the consent of the lawyer, provided that an admonition may be used in subsequent proceedings as evidence of prior misconduct solely upon the issue of sanction to be imposed;
(6) deferred discipline agreement;
(7) restitution to persons financially injured, repayment of unearned or inequitable attorney’s fees or costs advanced by the client, and reimbursement to the Lawyers’ Fund for Client Protection;
(8) assessment of the costs of the proceedings, including the cost of hearings, investigations, service of process ad court reporter services;
(9) limitations on the nature and extent of the lawyer's future practice;
(10) any other sanction or requirement as the Supreme Court may determine is appropriate.
Footnotes:
1 Materials reproduced from the South Carolina Rules of Appellate Court.
2 The author expresses appreciation to the private attorneys and members of the judiciary who provided information which aided in the assimilation of this material. Also, the office of Disciplinary Counsel, and Attorney Barbara Seymour in particular, were most helpful in providing case law and examples of frequent areas of complaint.
