The Seven Deadly (Ethical) Sins

Law schools teach students the principles of legal ethics. Bar examiners test prospective attorneys on the rules of professional responsibility. But new associates, especially at big firms, typically are clueless when it comes to the practical implications of ethics rules upon their day-to-day lives.

It is incumbent upon law firms to teach new associates about these practical implications. In the first place, law firms owe it to recent hires to teach them to act ethically and responsibly in their professional dealings ' just like firms try to teach new lawyers to become proficient writers and researchers. Moreover, a firm that fails to indoctrinate new lawyers on ethics issues risks serious harm to reputation, loss of business, and lawsuits arising from conflicts of interest and other ethical improprieties.

In addition to thoroughly indoctrinating new attorneys regarding ethics issues, a prudent law firm will establish ethics systems and develop a culture that encourages lawyers to take advantage of these systems. When questions arise as to the appropriate course of action to take, attorneys must be comfortable that they can quickly obtain guidance without fear of reprisal. Otherwise, the best indoctrination process in the world will not prevent conflicts and other ethical improprieties from occurring.

Prudent law firms will hold attorneys at all levels accountable for adherence to high ethical principles. By rewarding ethical conduct and punishing improprieties with more senior attorneys, firms will simultaneously encourage new attorneys to act properly. Such a strategy will further strengthen the firm's general atmosphere and reputation as a first-rate group of lawyers that adheres to the highest standards of ethical conduct.

The issues discussed in this article need to be addressed on a regular basis with attorneys at all levels of experience. In my experience, however, new attorneys in particular are prone to the types of mistakes discussed here. Year after year, it seems that every incoming class of new attorneys make these mistakes. Accordingly, new hires need to be reminded, early in the process, of these recurring issues and how to address them. Some of the most common scenarios are described below.

1. Keep Confidential Matters Confidential.

New attorneys are justifiably proud of both their firms and the importance of their firms' clients. Sometimes, the temptation to brag or name-drop can overcome the duty of confidentiality. New attorneys must be reminded of the serious consequences that can flow from divulging information that a client expects will be kept confidential.

Imagine that a firm client is the subject of a criminal investigation or tax audit, or is secretly preparing to commence a hostile takeover of another company. If a new associate mentions his or her involvement to relatives or friends, the impact can be devastating to the client, the firm, and the associate ' especially if the friend or relative communicates this confidential information to others.

A related problem can occur when attorneys socialize at the end of a long day. I remind my firm's new associates of a true story to illustrate the point. After a long day in the midst of contentious discovery proceedings, several attorneys went to a baseball game, had a few beers, and relaxed. They also talked about the case on which they were working, and the strategy that their partner planned for the following week. Unfortunately, their conversations were too loud ' as they soon discovered when their partner confronted them after a telephone call from the other side's lead counsel, who happened to be seated within earshot at the baseball game. These attorneys learned the importance of maintaining confidentiality the hard way.

2. Don't Use Firm Stationery to Register Consumer Complaints.

A license to practice law is a powerful privilege. So is firm letterhead. When an attorney first obtains access to these privileges, the temptation to redress day-to-day nuisances, by writing complaints on firm letterhead, can sometimes become overpowering.

Again, I tell new attorneys a true story to illustrate the point. An airline once lost an attorney's suitcase. The attorney used firm stationery to write a strident letter of complaint to the airline. Unfortunately, the airline was a firm client ' and found a new law firm when it saw the complaint on firm letterhead.

Firm communications are not to be used for personal issues. Before any letters are written, the firm's conflicts checking system must be followed, and the applicable partner must review and approve even the most innocuous sounding communications.

3. Beware of Giving Free Advice to Relatives and Friends.

Especially when someone is the first attorney in the extended family, he or she will soon be inundated by phone calls from relatives and friends as soon as the lawyer is licensed to practice. Wide-ranging questions ' from landlord/tenant and consumer law to criminal and trademark principles ' will be posed to the first year associate. Holiday cocktail parties will also generate numerous issues for the brand new attorneys to field.

Firms must teach their new attorneys to be extremely careful about answering such questions. Malpractice issues aside, the risks of conflicts of interest in this context are significant. Hypotheticals are easy to construct to illustrate the point. Assume that the firm represents residential home builders. A cousin calls a new associate, who works in a different department of the firm, because his new home has settlement cracks. The associate provides free advice to the cousin, who later hires a different attorney and sues the home builder. When the firm enters its appearance on behalf of the builder, the cousin files a motion to disqualify. The motion could well be granted, but even if it isn't, the client relations problems are palpable.

Prudent firms are very careful about the procedure that they implement to prevent conflicts of interest from arising as a result of new matters. Even apart from ethical conflicts, business conflicts can be just as important to avoid. For example, firms that represent residential home builders will usually try not to give free or pro bono advice to new home buyers. New associates must be trained to perform conflicts checks before providing advice ' even to well-intentioned family members ' to prevent these problems from occurring. On this point, refresher training for more senior attorneys is probably a good idea, too. Not much is worse than losing a major firm client because a conflicts check was not performed before work commenced on a matter adverse to the client.

4. No (Wo)Man is an Island.

This issue is amply illustrated by a hypothetical based upon a well-publicized case that arose several years ago in the Washington, DC suburbs. A new associate is assigned to an ogre partner, whose litigation tactics are ethically questionable. The associate feels intimidated ' and there are no options available, apart from the ogre partner, for raising her concerns. As a result, the associate does not come forward with her concerns, which turn out to be legitimate. Sanctions result and the reputational damage to the associate and the firm (as well as the ogre partner, who probably deserves his fate) is tremendous.

The solution to this problem is simpler to state than to implement. Firms should have visible and well-publicized options for new associates ' and others ' to follow to raise and resolve ethical concerns. New associates, in particular, should be trained about the existence and importance of these options. Partners should be admonished to avoid even the appearance of reprisals against anyone who uses these options.

The more effectively these steps are implemented, the more likely it will be that the firm will have an ethically sound culture. Moreover, the stronger the firm's culture in this area, the less likely the firm will find itself faced with the quandary of the ogre partner.

5. “There Wasn't a 'Real' Conflict Because it Was Only a Friendly Transaction.”

I wish I had a dollar for every time an attorney used this excuse. Usually, the excuse surfaces when a major firm client questions why another firm attorney is representing the other side in a transaction. The situation is even more embarrassing when firm attorneys are representing two adverse parties in the same transaction.

New attorneys must be taught that, for conflicts of interest purposes, there is no such thing as a “friendly transaction.” All parties must be listed in the conflicts check, and consent must be obtained before work begins. Hopefully, if associates learn this lesson early enough during the course of their careers, they will be sensitive to this problem throughout their affiliation with the firm.

6. New Attorneys Must Take Personal Responsibility for Making Certain That Their Work Does Not Create a Conflict of Interest.

Most, if not all, big law firms periodically publish a list of new matters that are coming into the firm. It is incumbent upon all personnel to scrutinize these lists to make sure that there isn't an unknown conflict that would otherwise go undetected if work proceeded on a certain matter.

New attorneys must be taught to understand that they are personally responsible for promptly reviewing and commenting upon these lists. In my experience, it takes a face-to-face conversation with associates for them to understand the importance of this responsibility. For example, I recall a situation where my firm represented a major client in an ERISA class action involving pension benefits. By reviewing our weekly list of new matters, a new associate recognized that his father was a class member. But for this review, the issue would not have been detected early during the process. We were then able to take steps to make sure that the new associate was not assigned to and was screened from the pension litigation. Ideally, all firm attorneys will understand the need to be as vigilant as this model associate.

Firms also should instruct new associates never to assume that a senior associate or supervising partner has checked conflicts ' either when a new matter comes into the firm or when new parties become involved in an existing matter. If the new associate learns to routinely check with the supervisor's secretary to make sure that conflicts have been cleared, countless misunderstandings and unrecognized conflicts of interests will be avoided.

7. New Associates Cannot Practice Law Until They Have Been Licensed to Participate in the Jurisdiction.

Many new associates begin work before they learn the results of their bar examination or before they are admitted to practice in the jurisdiction. For that reason, these attorneys must be informed, in unequivocal terms, that they cannot practice law until they are licensed to do so.

Before that time, they can conduct legal research and write drafts of documents. They cannot sign correspondence and pleadings, however, or hold themselves out as attorneys. It amazes me how many new associates (or their supervising partners) do not appreciate this fundamental principle. Therefore, firms should specifically teach them about these ground rules.

Conclusion

Some of the points in this article might seem self-evident to the reader. In my experience, however, new attorneys often will not recognize these points unless they are specifically relayed to them. By doing so, firms will achieve two important goals. First, new associates will learn important practical lessons that will assist them throughout their careers. Second, firms will reduce the risk of embarrassment or litigation as a result of undetected conflicts of interest or other ethical improprieties. Both goals are important to the success of new associates and their firms.

Law schools teach students the principles of legal ethics. Bar examiners test prospective attorneys on the rules of professional responsibility. But new associates, especially at big firms, typically are clueless when it comes to the practical implications of ethics rules upon their day-to-day lives.

It is incumbent upon law firms to teach new associates about these practical implications. In the first place, law firms owe it to recent hires to teach them to act ethically and responsibly in their professional dealings ' just like firms try to teach new lawyers to become proficient writers and researchers. Moreover, a firm that fails to indoctrinate new lawyers on ethics issues risks serious harm to reputation, loss of business, and lawsuits arising from conflicts of interest and other ethical improprieties.

In addition to thoroughly indoctrinating new attorneys regarding ethics issues, a prudent law firm will establish ethics systems and develop a culture that encourages lawyers to take advantage of these systems. When questions arise as to the appropriate course of action to take, attorneys must be comfortable that they can quickly obtain guidance without fear of reprisal. Otherwise, the best indoctrination process in the world will not prevent conflicts and other ethical improprieties from occurring.

Prudent law firms will hold attorneys at all levels accountable for adherence to high ethical principles. By rewarding ethical conduct and punishing improprieties with more senior attorneys, firms will simultaneously encourage new attorneys to act properly. Such a strategy will further strengthen the firm's general atmosphere and reputation as a first-rate group of lawyers that adheres to the highest standards of ethical conduct.

The issues discussed in this article need to be addressed on a regular basis with attorneys at all levels of experience. In my experience, however, new attorneys in particular are prone to the types of mistakes discussed here. Year after year, it seems that every incoming class of new attorneys make these mistakes. Accordingly, new hires need to be reminded, early in the process, of these recurring issues and how to address them. Some of the most common scenarios are described below.

1. Keep Confidential Matters Confidential.

New attorneys are justifiably proud of both their firms and the importance of their firms' clients. Sometimes, the temptation to brag or name-drop can overcome the duty of confidentiality. New attorneys must be reminded of the serious consequences that can flow from divulging information that a client expects will be kept confidential.

Imagine that a firm client is the subject of a criminal investigation or tax audit, or is secretly preparing to commence a hostile takeover of another company. If a new associate mentions his or her involvement to relatives or friends, the impact can be devastating to the client, the firm, and the associate ' especially if the friend or relative communicates this confidential information to others.

A related problem can occur when attorneys socialize at the end of a long day. I remind my firm's new associates of a true story to illustrate the point. After a long day in the midst of contentious discovery proceedings, several attorneys went to a baseball game, had a few beers, and relaxed. They also talked about the case on which they were working, and the strategy that their partner planned for the following week. Unfortunately, their conversations were too loud ' as they soon discovered when their partner confronted them after a telephone call from the other side's lead counsel, who happened to be seated within earshot at the baseball game. These attorneys learned the importance of maintaining confidentiality the hard way.

2. Don't Use Firm Stationery to Register Consumer Complaints.

A license to practice law is a powerful privilege. So is firm letterhead. When an attorney first obtains access to these privileges, the temptation to redress day-to-day nuisances, by writing complaints on firm letterhead, can sometimes become overpowering.

Again, I tell new attorneys a true story to illustrate the point. An airline once lost an attorney's suitcase. The attorney used firm stationery to write a strident letter of complaint to the airline. Unfortunately, the airline was a firm client ' and found a new law firm when it saw the complaint on firm letterhead.

Firm communications are not to be used for personal issues. Before any letters are written, the firm's conflicts checking system must be followed, and the applicable partner must review and approve even the most innocuous sounding communications.

3. Beware of Giving Free Advice to Relatives and Friends.

Especially when someone is the first attorney in the extended family, he or she will soon be inundated by phone calls from relatives and friends as soon as the lawyer is licensed to practice. Wide-ranging questions ' from landlord/tenant and consumer law to criminal and trademark principles ' will be posed to the first year associate. Holiday cocktail parties will also generate numerous issues for the brand new attorneys to field.

Firms must teach their new attorneys to be extremely careful about answering such questions. Malpractice issues aside, the risks of conflicts of interest in this context are significant. Hypotheticals are easy to construct to illustrate the point. Assume that the firm represents residential home builders. A cousin calls a new associate, who works in a different department of the firm, because his new home has settlement cracks. The associate provides free advice to the cousin, who later hires a different attorney and sues the home builder. When the firm enters its appearance on behalf of the builder, the cousin files a motion to disqualify. The motion could well be granted, but even if it isn't, the client relations problems are palpable.

Prudent firms are very careful about the procedure that they implement to prevent conflicts of interest from arising as a result of new matters. Even apart from ethical conflicts, business conflicts can be just as important to avoid. For example, firms that represent residential home builders will usually try not to give free or pro bono advice to new home buyers. New associates must be trained to perform conflicts checks before providing advice ' even to well-intentioned family members ' to prevent these problems from occurring. On this point, refresher training for more senior attorneys is probably a good idea, too. Not much is worse than losing a major firm client because a conflicts check was not performed before work commenced on a matter adverse to the client.

4. No (Wo)Man is an Island.

This issue is amply illustrated by a hypothetical based upon a well-publicized case that arose several years ago in the Washington, DC suburbs. A new associate is assigned to an ogre partner, whose litigation tactics are ethically questionable. The associate feels intimidated ' and there are no options available, apart from the ogre partner, for raising her concerns. As a result, the associate does not come forward with her concerns, which turn out to be legitimate. Sanctions result and the reputational damage to the associate and the firm (as well as the ogre partner, who probably deserves his fate) is tremendous.

The solution to this problem is simpler to state than to implement. Firms should have visible and well-publicized options for new associates ' and others ' to follow to raise and resolve ethical concerns. New associates, in particular, should be trained about the existence and importance of these options. Partners should be admonished to avoid even the appearance of reprisals against anyone who uses these options.

The more effectively these steps are implemented, the more likely it will be that the firm will have an ethically sound culture. Moreover, the stronger the firm's culture in this area, the less likely the firm will find itself faced with the quandary of the ogre partner.

5. “There Wasn't a 'Real' Conflict Because it Was Only a Friendly Transaction.”

I wish I had a dollar for every time an attorney used this excuse. Usually, the excuse surfaces when a major firm client questions why another firm attorney is representing the other side in a transaction. The situation is even more embarrassing when firm attorneys are representing two adverse parties in the same transaction.

New attorneys must be taught that, for conflicts of interest purposes, there is no such thing as a “friendly transaction.” All parties must be listed in the conflicts check, and consent must be obtained before work begins. Hopefully, if associates learn this lesson early enough during the course of their careers, they will be sensitive to this problem throughout their affiliation with the firm.

6. New Attorneys Must Take Personal Responsibility for Making Certain That Their Work Does Not Create a Conflict of Interest.

Most, if not all, big law firms periodically publish a list of new matters that are coming into the firm. It is incumbent upon all personnel to scrutinize these lists to make sure that there isn't an unknown conflict that would otherwise go undetected if work proceeded on a certain matter.

New attorneys must be taught to understand that they are personally responsible for promptly reviewing and commenting upon these lists. In my experience, it takes a face-to-face conversation with associates for them to understand the importance of this responsibility. For example, I recall a situation where my firm represented a major client in an ERISA class action involving pension benefits. By reviewing our weekly list of new matters, a new associate recognized that his father was a class member. But for this review, the issue would not have been detected early during the process. We were then able to take steps to make sure that the new associate was not assigned to and was screened from the pension litigation. Ideally, all firm attorneys will understand the need to be as vigilant as this model associate.

Firms also should instruct new associates never to assume that a senior associate or supervising partner has checked conflicts ' either when a new matter comes into the firm or when new parties become involved in an existing matter. If the new associate learns to routinely check with the supervisor's secretary to make sure that conflicts have been cleared, countless misunderstandings and unrecognized conflicts of interests will be avoided.

7. New Associates Cannot Practice Law Until They Have Been Licensed to Participate in the Jurisdiction.

Many new associates begin work before they learn the results of their bar examination or before they are admitted to practice in the jurisdiction. For that reason, these attorneys must be informed, in unequivocal terms, that they cannot practice law until they are licensed to do so.

Before that time, they can conduct legal research and write drafts of documents. They cannot sign correspondence and pleadings, however, or hold themselves out as attorneys. It amazes me how many new associates (or their supervising partners) do not appreciate this fundamental principle. Therefore, firms should specifically teach them about these ground rules.

Conclusion

Some of the points in this article might seem self-evident to the reader. In my experience, however, new attorneys often will not recognize these points unless they are specifically relayed to them. By doing so, firms will achieve two important goals. First, new associates will learn important practical lessons that will assist them throughout their careers. Second, firms will reduce the risk of embarrassment or litigation as a result of undetected conflicts of interest or other ethical improprieties. Both goals are important to the success of new associates and their firms.