September — the start of the new “school year” and a good time to get back to basics. And in this post-Enron, post-WorldCom era, with the lessons of the accounting profession staring us in the face, focusing on ethics is perhaps more compelling than it might have been a year ago. With that hope, this article will attempt to distill some of the ABCs of an ethics program for small firms and solo practitioners.
At the outset, and although (as the title suggests) this commentary will be limited to fundamentals, it is important to note that ethics should encompass more than averting disciplinary or malpractice problems. The culture and character of the law firm are as or more important than simple compliance with the rules of professional responsibility. Equally critical are such issues as how you treat your staff and how you and your staff treat your clients. Also consider what efforts you make to be of service generally and, in particular, what efforts you make to provide pro bono services.
That said, here are some nitty-gritty issues and pointers that small firms and solo practitioners should consider in structuring their firms’ ethics programs.
The Ethics Attorney — Think about naming one member of the firm with interest in and knowledge of the field as “ethics partner.” If that is not practical, or for solo practitioners, consider making an arrangement to have an outside attorney with expertise in this area act as ethics counsel. Doing so emphasizes the importance of ethics within the firm and has the happy side effect of enhancing the firm’s ability to comply with Mass. R. Prof. C. 5.1 through 5.3 concerning lawyers’ supervisory responsibilities.
The primary responsibility of the ethics attorney will be prophylactic. And whether there is a designated ethics attorney, lawyers and support staff should have someone they can comfortably approach with their concerns and from whom they can receive advice on firm policies, the application of the rules of professional responsibility to particular situations, and ethics issues generally.
Note, however, that it must be made clear that confidentiality cannot be guaranteed in advance. If the problem involves, for example, harm to a client or serious misconduct by a lawyer, it may have to be communicated to the client in the former instance or reported to disciplinary authorities in the latter. A firm member who is consulted should make it clear that sensitive information will not be disclosed unless necessary. Because of attorney/client confidentiality, the considerations may be different for outside ethics counsel.
The ethics attorney, or some designated firm member, needs to be involved in doing conflicts checks on lawyers joining the firm and then should introduce himself or herself to the new attorney, making sure the new hire understands the role of the ethics attorney and knows where and how to obtain access to the firm’s ethics resources. The ethics attorney also will be involved in the designing and implementing of systems and forms described below.
Systems — Whether your law practice has a designated ethics attorney, the firm must have systems that insure compliance with its ethical obligations and the firm must make sure that staff members, lawyers and nonlawyers alike, are trained in these systems. The importance of these twin duties cannot be overemphasized.
Obvious examples of systems where compliance with ethical obligations is critical are trust accounts, ticklers and calendars, time keeping, marketing, conflict checking and file opening. Trust-account record keeping is obviously subject to the requirements of Mass. R. Prof. C. 1.15 and the plethora of disciplinary case law interpreting this rule. Ticklers and calendars implicate Rules 1.1 through 1.4 on competence, diligence and communication. Keeping accurate time records is necessary to avoid disputes with clients over fees, whether or not such controversies rise to the level of a violation of Mass. R. Prof. C. 1.5. Marketing raises issues under the advertising and solicitation rules, 7.1 through 7.5. An adequate system for performing a conflict check before accepting any new case is required to avoid problems under Rules 1.7 through 1.12. And standardizing the firm’s system for opening new files affects almost every aspect of a firm’s ethical obligations.
All of these concerns can lead not just to disciplinary or malpractice complaints but, more commonly and of more immediate impact, to the deterioration of your relationship with clients, the loss of these clients, and the loss of the word-of-mouth referrals that such clients might otherwise have made to friends, family, and business associates
Forms — Every law practice has to have certain forms. Just a few of the obvious ones would be intake forms, engagement letters, nonengagement or declination letters, termination letters and fee agreements including contingent fee agreements. These forms must be easily accessible, by computer or otherwise, to members of the firm including support staff. Two good ways to accomplish this sharing are an intranet site or, more simply, a “public” folder in the office computer network.
Another important form is a list of print resources for ethics research. Two of the best products in this respect are the Restatement Third, The Law Governing Lawyers and the ABA/BNA Lawyers’ Manual on Professional Conduct. The Web site addresses, telephone numbers and call-in hours of bar association ethics committees and the Office of Bar Counsel, all of whom respond to ethics inquiries, should also be included. The Web site of the Office of Bar Counsel (www.mass.gov/obcbbo) also is an abundant source of information on ethics and professional responsibility, including articles, rules, and prior disciplinary decisions in Massachusetts.
FAQs — Finally, there are certain ethics questions that come up over and over again. It is clearly not cost effective to reinvent the wheel by having different members of the firm research it anew, unaware that an issue has already been explored by ethics counsel or a colleague. Worse, there is the danger that members of the same firm will arrive at inconsistent answers to the same question. For solo practitioners, the risk is that you won’t remember that you already researched an issue or won’t remember what you decided or where you put the information!
To avoid this problem, the firm should commit the answers to recurring questions to writing and store these responses in some format that is available to the staff, again, perhaps an intranet site or a public folder on the office computer network. (This is another area that would clearly be the responsibility of the ethics partner, if one exists.) The FAQs should contain the question, the answer and a short explication of the reasoning behind the answer including citations to relevant authorities or decisions. The questions and answers can be arranged by disciplinary rule or by subject or in any other logical way. In this manner, lawyers in the firm will not be alone answering difficult questions such as “what are the considerations in representing two individuals who want to start a business” or (to use a current hot topic as an example) “can I interview former employees of a corporation that our firm is suing”.
William Wernz, the author of the article on which this piece is based (see below), concludes his discussion with the following thoughts:
The most crucial elements of a good law firm ethics program will always be good people, good judgment, and a strong overall sense of the law firm’s character. Increasingly, however, the disciplinary and regulatory aspects of lawyer ethics require expert and systematic attention and information… Lawyers must be careful, however, not to let the importance and sheer bulk of lawyer regulation push aside the habits, traditions, judgment and people which will always be at the center of a law firm ethics program.
These words sum up the principles — indeed, the ethics — by which an ethics program in a law practice should be guided.
Constance V. Vecchione is first assistant bar counsel at the Board of Bar Overseers. This article is adapted with permission from a paper entitled “The Essentials of a Law Firm Ethics Program” by William J. Wernz, ethics partner at Dorsey & Whitney LLP, Minneapolis, Minnesota, written for the American Bar Association 28th National Conference on Professional Responsibility held in Vancouver, Canada in May 2002.