(This article appeared in Journal 25,1, March 2020)
A new year brings new opportunity to evaluate your practice and participation in the profession. In looking to 2020, we came up with 20 tips for meeting or exceeding ethics and professionalism standards:
1. Freshen Up Your Fee Agreement
How long has it been since you reviewed your fee agreement (and we mean really reviewed your fee agreement)? Although Rule 1.5 only requires contingent fee agreements be in writing, it is our humble opinion that, when possible, lawyers should reduce their fee agreements to writing. This benefits not just the client in understanding the scope and fee structure of the representation, but also the lawyer if/when a dispute arises (particularly if that dispute makes its way to the State Bar). That being said, if you use a written fee agreement, make sure that its language clearly and completely describes the fees charged and the services provided. Also be sure to use the correct language in describing your fees, and remove the word “nonrefundable” from the agreement (see 2008 FEO 10 for guidance). Putting the time in now to update your agreement could save you a headache—or a grievance—later in the year.
2. Get Involved!
Respectfully, we disagree—you can make time, and you have a lot to offer! Make 2020 the year that you step up to serve in your local bar, participate in a pro bono project, or otherwise serve alongside your fellow lawyers and fellow citizens. Contrary to popular opinion, lawyers have an incredible skill set to offer for the public good. Furthermore, working with and getting to know your fellow lawyers outside of the adversarial process tends to make those inevitable moments of disagreement smoother and more professional, which benefits the administration of justice for both the court system and the parties involved. In 2020, step up, and step out—you’ll be glad you did.
3. Protect Digital Data
Like it or not, we live in a digital world, and that includes our law practices. The power to access and share client information is literally at your fingertips through the device in your pocket (or perhaps the device you’re currently using to read this article). But as Uncle Ben told a young Peter Parker who was discovering his newly acquired superhuman capabilities, “With great power comes great responsibility.”
A digital practice can be an effective and convenient thing, but if lawyers are going to use and rely upon technology, we must do so in accordance with our responsibilities to our clients. Lawyers have a duty to protect confidential client information by making “reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.” Rule 1.6(c). Among the factors considered in determining the reasonableness of a lawyer’s efforts are: the sensitivity of the information, the cost of employing additional safeguards, the difficulty in employing the safeguards, how additional safeguards may interfere with the lawyer’s ability to represent clients, and—perhaps most importantly—the risk associated with failing to employ additional safeguards to protect client information. See Rule 1.6 cmt. 19. What constitutes “reasonable efforts” for protecting digital client data is constantly evolving—what was “reasonable” ten years ago may very well be considered unreasonable today. Take, for example, public wi-fi access: Setting up in a local coffee house or in the airport prior to a flight to do some work on your cases using a free public wi-fi network was a normal thing in 2010. Today, considering our significantly expanded knowledge and experience with the dangers associated with public wi-fi, the lawyer who connects her work computer— containing all of her client files, past or present—to that public network without additional safeguards is arguably not making “reasonable efforts” to protect against inadvertent or unauthorized access to client data. Take some time in 2020 to review not just the safeguards you have in place to protect client data on mobile devices, but every way in which you handle confidential digital data, from digital storage, to password integrity, to how such information is accessed.
4. Help a New Lawyer
Once upon a time, you were a new lawyer. Whether that “once upon a time” was one year ago or over 30 years ago doesn’t matter. What matters is that, no matter how long you’ve been practicing, you know more today than you did when you first received that wonderful letter from the Board of Law Examiners informing you of your admittance to the North Carolina Bar. There are hundreds of new lawyers joining our bar each year, and each of them needs to hear about your successes, your failures, your tips, and your pitfalls. Whether through a formal mentoring program or a chance encounter at the courthouse, share your experience and wisdom with a new lawyer, just as an experienced lawyer shared with you when you first started practicing. Professionalism is about more than being courteous; it’s also about empowering others to succeed.
5. Listen to an Experienced Lawyer
Spoiler alert for the new lawyers out there: You don’t know everything. (Second spoiler: this applies equally to all lawyers.) If, as noted above, professionalism encompasses empowering others to succeed, consider empowering yourself by creating the opportunity to listen to those who came before you. The stories are often entertaining and full of genuine wisdom that can help you and your client. In 2020, be quiet, and listen.
6. Be Confident in Your Conflict-Checking System
Just like your fee agreement, it may be time to review your conflict-checking system in 2020. Today, there are multiple ways to check for conflicts of interest, from a rudimentary Excel spreadsheet to a sophisticated database/case management system. Whatever mechanism you use to check for conflicts, it will be worth the time you invest to ensure that the tool or system is appropriately capturing and analyzing (or enabling you to analyze) all relevant data so that you can efficiently and accurately determine whether an actual or potential conflict exists. Quick tip from the Office of Counsel: Unless you have only one client, conflict-checking systems that exist “entirely in your head” are not reliable and will lead to problems.
7. Hope for the Best, but Plan for the Worst
2020 has already been full of unexpected developments (Harry and Meghan are leaving the royals! Australia is on fire!), reminding us that sometimes life is truly out of our control. As lawyers, with responsibilities to our clients, the court system, the profession, our staff, and our families, we tend to focus on the most imminent deadline and most pressing need, with little thought to longer-range considerations. But when lawyers are unexpectedly unable to practice, our unavailability can cause a ripple effect of difficulty and harm to those we aim to serve. Take some time this year to envision what would happen to your practice if you were one day unable to return, then set up a plan. Who will notify your clients? How will that person know which clients are active or inactive; how will they know which clients need immediate assistance? Can someone clearly identify client property (namely, the client file and entrusted property) so that the property can be promptly returned? Organizing your office in a way that allows someone to pick up where you left off may seem overwhelming, but the time and effort will be well spent.
8. Take Care of Yourself
Simply put, you can’t be the best lawyer you can be for your clients if you aren’t taking care of yourself. Being a lawyer is a stressful thing. The practice itself can be overwhelming and full of pressure, and that reality can easily seep into and interfere with your personal life. Whether we’re talking about sleep deprivation, compassion fatigue, depression, or substance abuse (to name a few common lawyer experiences), your abilities as a lawyer, a spouse, and/or a caretaker will suffer if you don’t take care of yourself. In 2020, schedule time each week for a hobby, exercise, or something that brings you joy; take that vacation you wish you had taken in 2019; reach out to a friend to reconnect; call the great people at the Lawyer Assistance Program; or simply take a mental health day and stay home in your pajamas. Things will be fine at the office until you get back.
9. Think Twice (or Ten Times) before Doing Business with Your Clients
Depending on the nature of your relationship with a client or the type of law you practice, business opportunities with clients may arise from time to time that are simply too attractive to pass up. Proceed with caution! Due to the potential for misunderstanding, manipulation, and undue influence inherent in mixing fiduciary and business relationships, Rule 1.8(a) sets forth a series of specific requirements that must be satisfied when pursuing a business opportunity with a client: The agreement must be in writing and the terms must be fair and reasonable; you have to advise your client in writing about the desirability of seeking independent legal counsel and give them an opportunity to do so; your role in the transaction must be clearly communicated (you guessed it—in writing); and your client must give informed consent to the transaction in a signed writing. Many lawyers miss one or more of these requirements when they decide to do business with a client. So think twice. Or ten times.
10. Be Available...
Rule 1.4 requires lawyers to respond to reasonable client requests for information and to keep our clients updated on the status of their cases. Communication (or lack thereof) is one of the top complaints lodged against lawyers in the grievance process. Over the years, many grievance issues could have been avoided if the lawyer had simply taken the time to respond to the client. Amidst the potentially hundreds of active cases on your plate, it is easy to lose sight of the fact that your client has only one active case—and it means everything to him. Some days are harder than others, but try to make time every day to respond to a client’s request for a status update.
11. …but Set Some Boundaries
That being said, you are not required or expected to be available to your clients at all times, through all methods of communication. Lack of boundaries is harmful to you personally, in that it requires you to live your clients’ crises even during much-needed downtime. If there is no time or space in your life that is insulated from your practice, it will begin to consume you. Lack of boundaries is also harmful to your credibility as a professional. If you are texting, calling, and interacting with clients on social media with the same accessibility as their friends and family, clients are less likely to value your time, and may begin to undervalue your advice. Notwithstanding consumer demands for ever-increasing access, it is appropriate for a professional to only be available in certain ways and at certain times. Can you imagine an orthopedic surgeon who was available 24/7 to all her patients, making diagnoses based on texted photos and talking them through every accident or ailment, even on weekends? Of course not. Establish a policy regarding methods of communication and anticipated response times, including whether your clients will have your cell phone and under what circumstances they should use that number. Then stick to that policy.
12. Consider Your Communications with Judges—“May They Please the Court”
Technology has changed the way we communicate, but it hasn’t changed our formalized procedures for communicating with the court regarding a pending case. We know that it’s appropriate to communicate with the court in a hearing or through pleadings that are properly filed and served. And we know that it’s inappropriate to have ex parte communications about a case with the presiding judge. But then there’s the murky area of electronic communications that don’t fall into either of the categories above. Consider, for example, a group text to the presiding judge and opposing counsel saying that you’re sick and won’t be able to make it to court, or an email to the judge, cc’ed to opposing counsel, that airs a discovery dispute or comments on the evidence in the case. As we’ve become accustomed to electronic communication, this type of informal correspondence with judges has become more tempting. Do not assume, however, that it is ethically permissible to communicate about the substance of a case in this informal, off-the-record way. Merely including opposing counsel as a recipient doesn’t solve the potential ethical issues: There are serious questions about whether your opponent has adequate notice in the scenarios described above. Moreover, it may be prejudicial to the administration of justice to make substantive arguments regarding a case in a forum that isn’t part of the record and isn’t subject to evidentiary rules and other procedural restrictions. Given these concerns, the best practice is not to communicate informally with a judge relative to a pending case unless the court has invited you to do so.
13. Ask for Ethics Advice!
In 2019 the State Bar solicited feedback on what other measures the Bar could take to assist lawyers in maintaining our high professional standards. A great number of respondents asked the Bar to create an ethics hotline where members could call and receive ethics advice on difficult situations they were facing in their practice. These results were concerning, because the State Bar already has an ethics hotline (we typically answer around 5,000 informal inquiries per year). So let us be clear: If you are struggling with a particular situation in your practice and you need guidance on navigating the professional responsibility issues you’re facing, you can call the State Bar for ethics advice! Call 919-828-4620 and state that you’re a lawyer seeking ethics advice. We’ll take it from there.
14. Increase Your Tech-spertise
Comment 8 to Rule 1.1 states that a lawyer’s duty of competency extends to her knowledge of the benefits and risks associated with technology relevant to the lawyer’s practice. Lawyers need to stay abreast of the ways in which clients’ use of technology may affect the representation. For example, is the client communicating with you via an email account to which her employer has access and does that implicate whether the communications are privileged? Does your client have a lively YouTube channel and a podcast on which he vocally expresses his opinions on pretty much everything, and might his public commentary undermine your negotiations? Is your client an active participant on social media, and might that online activity become part of the evidence in the case? Technology has changed communication and has, therefore, changed the practice of law. We have to keep up if we are to represent our clients effectively in 2020 and beyond.
15. Play Nice
Lawyering is hard. Adulting is hard. Life happens. As a result, there are going to be times when all of us, no matter how conscientious, need some leeway from our fellow lawyers and judges. In those times, lawyers who avoid unfair and offensive tactics are going to have an easier time.
In the practice of law, we constantly arrive at forks in the road. Down one path is a course of action that is technically permissible but maximally adversarial. Down the other is a gentler approach, where we temper our advocacy with grace. Those who choose the first path file for default immediately when the answer is past-due, object to every discovery request even though their own requests are far more expansive, and prefer to resolve every disagreement about a case in a motion hearing rather than a phone call. Those who choose the second path play nice. They allow extra time for discovery responses, consent to continuances when it doesn’t prejudice their client, and pick up the phone to talk to opposing counsel when a dispute seems to be brewing. (As a reminder, Rule 1.2 empowers lawyers to choose professionalism over a client’s request for belligerence.)
Life is relentless. We don’t know when it will throw us the next curveball that makes it difficult or impossible to accomplish what we planned in a given day, week, or month. But when it does, those who play nice are much more likely to be forgiven and accommodated by our professional peers.
16. “When in Rome…”—Know Your Local Rules
When was the last time you looked at your district’s local rules? Don’t forget that these rules are not just suggestions—they are imposed by court order. Failing to comply with local rules could jeopardize your client’s case. Moreover, lawyers are ethically obligated to comply with the rules of the tribunal, so lawyers can and do face disciplinary action for knowingly violating local rules.
17. Take Charge! Set Policies and Train Your Staff
Who in your office sets up and maintains client files? Who monitors the trust account? Rules 5.1 and 5.3 require a lawyer with supervisory authority over lawyers and/or nonlawyers to make “reasonable efforts” to ensure the firm or organization has measures in effect that give a reasonable assurance that the employees act in compliance with the Rules of Professional Conduct. A lawyer cannot assume that everyone in the office is aware of his obligations under the Rules; he must establish and periodically review policies to ensure compliance with the Rules. Unfortunately, a number of grievances are born of inadequate staff supervision, and some have involved massive embezzlement by trusted employees. Take a step forward in meeting your professional obligations by setting policies that ensure the entire office’s compliance with the ethics rules.
18. Tend to Your Trust Account
The State Bar has a lot to say about trust accounts. In fact, somewhere in this edition of the Journal is another article devoted to the topic of trust accounts (as there has been for a number of years). We’re going to assume you’ve heard this message before, so here’s your encouragement to continue the hard but necessary work of monitoring your trust account. Review bank statements, examine cleared checks, keep meticulous records, and reconcile those trust accounts (among other things). The quickest way to lose the public’s trust in the profession is by messing with the money entrusted to our care. Accordingly, the quickest way to jeopardize your law license is to neglect (if not ignore) your trust account and your corresponding responsibilities in handling entrusted funds.
19. Pay Attention to Professional Regulation
We get it—folks generally don’t want to think about the State Bar, let alone interact with the State Bar. This is dangerous to our profession. The State Bar is not just the staff at the Bar building in downtown Raleigh. The State Bar is you and your colleagues. The State Bar Council (the decision-making body of the Bar) is largely made up of lawyers from your local districts that you elected. As a self-regulating profession, we welcome your input on decisions made regarding the interpretation, application, and revision of the ethical standards imposed on our profession. For example, later this year the council anticipates releasing a report containing recommended changes to the Rules of Professional Conduct dealing with lawyer advertising. Whether its amendments to the Rules, the Bar’s administrative rules, or a newly published ethics opinion, take time in 2020 to tell the State Bar what it got right and what it got wrong—just participate!
20. Be Kind to Each Other
Of all the things that circulate on the internet, very few deserve attention in the first place, let alone a second view. But one bit of wisdom that crops up in various memes is worth not just a retweet, but an actual repeat: “Be kind, for everyone you meet is fighting a battle you know nothing about.” Lawyering can be lonely and stressful and demoralizing. It can be a battle in itself, on top of the other challenges and heartbreaks of being human. We ease the burden of our chosen vocation for ourselves and our fellow lawyers when we are kind to each other. When lawyers treat each other with kindness, camaraderie comes easily. We have a commonality of experience that allows us to connect when we bring compassion rather than suspicion to our interactions. Plus, lawyers are smart and funny and complex and great storytellers. We’re worthy of kindness. Make 2020 your kindest year yet.
Brian Oten is ethics counsel and director of Legal Specialization and Paralegal Certification at the State Bar. Carmen Bannon is deputy counsel for the State Bar.