Professional Ethics for Attorneys

For many years the second quarter—April, May, and June—finds me talking. Yes, yes, I talk always, but the second quarter has me talking in public, mostly about professional ethics for attorneys. The State Bar of Arizona requires 15 hours of continuing legal education (CLE) between July 1 and June 30, and three of those hours must have ethics as their primary subject.

For reasons I don’t readily comprehend, many Arizona attorneys struggle to obtain their three hours of ethics. Whither, I—an attorney who devotes about one-third of his practice to ethics and related matters—get lots of opportunities to talk. My talking comprises some part of three hours, shared with one or more fellow panelists and, we hope, a questioning and engaged group of practitioners.

For 2017, I have already completed three four-hour sessions on ethics, all as a presenter. One more to go, in mid-June. A pretty typical to slightly more active year.

The world of professional responsibility focuses on lawyering. My entry into this world occurred 30 years ago, when I volunteered to serve as Bar Counsel, prosecuting an attorney who ran afoul of the rules. Then I lucked into a six-year gig as a member—volunteering again—of the Disciplinary Commission of the Arizona Supreme Court. (I was too young and inexperienced to get picked, but no one else applied when I did.) And the rest—think “working” for the government, and switching sides later—has worked out nicely.*

So, what are today’s hot issues? Technology and risk. Hacking should matter to every attorney. We have confidentiality obligations under ER 1.6. Many of us are modern-day Luddites. Very bad combination! Yet, courts and governmental bodies move increasingly toward mandatory electronic filing regimens. Tough stuff!

On confidentiality, at each of the three seminars at which I presented a different aspect of confidentiality confounded attorney attendees, and a few of the presenters. At its root ER 1.6 tells attorneys they can’t talk about their cases without client permission. Still, many attorneys assume it’s OK to share to share public information about a case they’re involved with.

“As long as I don’t divulge secrets we’re cool, right?” Uh, no!

Ethical attorneys don’t talk about their cases to others, outside their law firms, without client consent. That’s so even when the case may be on the front page of the newspaper, or the talk of the court house.

Do we all slip? Sure. Does anyone think an attorney doesn’t talk about work at home? Have a circle of friends—attorneys—with whom he or she shares information to get ideas, check judgment calls etc.? No! (I’m hyper-conscious, and I fail regularly, although my disclosures do not involve gratuitous sharing, and focus on talking with other attorneys to get help. Mostly!)

My point? Plain and simple, cases belong to clients, and not to their attorneys. Lay people: Expect your attorney to be quiet about your affairs, even if the world knows all about them. Attorneys: Butt time—time spent in your seat, at your desk—keeps you focused on your work. Don’t be yentas. (Mr. R gets credit for “butt time.”)

And the other hot topic? Succession planning. Many attorneys, today, are Baby Boomers. We will never die, right? Get sick? Get over yourselves, compatriots. Make a plan. Identify an assisting attorney, who will manage and transition your practice. Start getting your files returned to your clients. Focus, going forward, on how quickly the file in a resolved matter can be returned to the client, not on how long you have to keep it.

Clients: Don’t expect your attorney to be a long-term storage facility. Keep the stuff yourself or, better yet, if you don’t need the two Banker boxes associated with the lot line dispute you wish had never happened, tell your attorney she can shred the paper. Move on.

Finally, I must address estate planning documents, for part of my practice involves estate planning. For generations attorneys kept wills. Why? Clients lose them, and when the maker dies, if Attorney A has the original will, he might get hired to handle the probate.

Alas, with thousands of boxes of files under the control of the State Bar of Arizona—with storage being paid for out of bar dues—the State Bar counsels attorneys to hand the original will to the client after it’s signed. My practice? I’m with the State Bar. If I have handled your estate planning properly a probate may not be necessary. Regardless, the will belongs to you. Your beneficiaries should not have to worry about finding me. And, as my 60th birthday approaches, I know many of my estate planning clients will not likely be hiring me when their families come a calling.

If you have ethics issues, whether you are an attorney or not, please feel free to contact me.

*I account for my career path thusly: (a) 15% showing up; (b) 10% flexibility; and (c) 75% effing luck.