Ethical pitfalls for the single or small office practitioner

ETHICAL PITFALLS FOR THE SINGLE OR SMALL OFFICE PRACTITIONER

HON. MICHAEL D. MARCUS (RET.)
ADR SERVICES, INC.
1900 AVENUE OF THE STARS, SUITE 250
LOS ANGELES, CALIFORNIA 90067

Single or small office practitioners face unique ethical challenges because their size dictates that they must often operate in several critical areas without support. These problem areas and their related ethical obligations include:

• Communicating with clients in a timely manner. Attorneys are required to tell their clients about significant events. (Business and Professions Code section 6068, subdivision (m) and Rule of Professional Conduct 3-500.)

The failure to respond to a client’s letter asking for information about her case violated section 6068, subdivision (m). (In the Matter of Dahlz (Review Dept. 2001) 4 Cal. State Bar Ct. Rptr. 269); discipline was imposed where an attorney failed both to advise the client of an adverse decision and to ascertain whether the client wanted to seek judicial review. (Kapelus v. State Bar (1987) 44 Cal.3d 179.) The repeated failure to communicate with a client is a proper basis for discipline, even if the attorney’s conduct is not willful. (Id.) The duty to communicate extends to advise persons who believe they are clients even if they are not. (Butler v. State Bar (1986) 42 Cal.3d 323, 329; 228 Cal.Rptr. 499.)

• Maintaining an up-to-date calendar. The failure to appear at a calendared court appearance or to file a motion or brief on time can be violations of Rule of Professional Conduct 3-110, subdivision (A), which provides that “A member shall not intentionally, recklessly or repeatedly fail to perform legal services with competence,” if the failure was intentional, reckless or repeated. (Note, however, that simple negligence is not disciplinable. [In the Matter of Ward (Review Dept. 1992) 2 Cal. State Bar Ct. Rptr. 47, 57].)

The failure to appear or file the important legal paper are ethical violations even if the fault was an associate’s or secretary’s because attorneys have an obligation to adequately supervise their employees. (Layton v. State Bar (1990) 50 Cal.3d 889, 900); see also In the Matter of Hindin (Review Dept. 1997) 3 Cal. State Bar Ct. Rptr. 657 [attorneys are responsible for regularly reviewing client files and monitoring associates even when their available time is limited].)

• Limiting the practice to legal areas in which one is knowledgeable. Attorneys can raise the ire of their clients, opposing counsel and the courts when they become involved in matters with which they have no or little familiarity. Rule of Professional Conduct 3-110, subdivision (A) requires that “A member shall not intentionally, recklessly or repeatedly fail to perform legal services with competence.” Attorneys can avoid this pitfall “If (they do) not have sufficient learning and skill when the legal service is undertaken … by 1) associating with or, where appropriate, professionally consulting another lawyer reasonably believed to be competent, or 2) by acquiring sufficient learning and skill before performance is required.” (Rule of Professional Conduct 3-110, subdivision (C).)

• Maintaining good financial records. Single practitioners can violate Rule of Professional Conduct 4-100, subdivision (A) (which states in part that “No funds belonging to the member … shall be deposited (in a client’s trust account) or otherwise commingled …”) by using their trust accounts as a general office account. “Commingling” occurs “when a client’s money is intermingled with that of his attorney and its separate identity lost so that it may be used for the attorney’s personal expenses or subjected to the claims of his creditors.” (Arm v. State Bar (1990) 50 Cal.3d 763, 776-777.) Rule 4-100, subdivision (A) is also violated when attorneys do not promptly deposit client funds into trust accounts as they are obtained or withdraw funds from the same account when they have been earned. (See In the Matter of Yagman (Review Dept. 1997) 3 Cal. State Bar Ct. Rptr. 788, 803.)

Attorneys can also commit an ethical violation when they do not, as mandated by Rule of Professional Conduct 3-700, subdivision (D)(2) “promptly refund (to the client) any part of a fee paid in advance that has not been earned.” An exception to this rule are true retainers, which are fees paid solely to ensure the attorney’s availability. (See Baranowski v. State Bar (1979) 24 Cal.3d 153, 164, n. 4.)

• Making certain that the files of former clients have been promptly released upon request. Rule of Professional Conduct 3-700, subdivision (D)(1) states that “Subject to any protective order or non-disclosure agreement, (an attorney shall) promptly release to the client, at the request of the client, all the client papers and property.” (Note that two weeks in returning a file was not disciplinable. [In the Matter of Kaplan (Review Dept. 1996) 3 Cal. State Bar Ct. Rptr. 547].)

An attorney’s litigation file is the client’s property and not the attorney’s. (Rose v. State Bar (1989) 49 Cal.3d 646, 655 [whether an attorney must also surrender uncommunicated work product is an open question].) Also, the return of a client’s files should not be contingent upon an executed substitution of attorney by the client. (In the Matter of Kopinski (Review Dept. 1994) 2 Cal. State Bar Ct. Rptr. 716, 725-726.)

All of the above problems can be addressed if the single or small firm practitioner does three things:

1. Mentor – Finds a seasoned mentor who is available to advise the attorney about legal issues with which the attorney has insufficient knowledge;

2. Financial records – Hires, employs or uses a service or system that adequately maintains his or her financial records and

3. Calendar system – Hires, employs or uses a service that keeps track of his or her telephone calls and calendar.

Copyright Michael D. Marcus, August 2007

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