Because many ethical blunders in law practice are avoidable, it is important to be aware of common mistakes, and to take affirmative steps to avoid them. While this is true for all attorneys, this is of particular importance for solo and small firm practitioners who often manage all aspects of their law firms themselves. The top ten ethical blunders, and strategies to avoid them, are as follows:
1. Phantom Clients
Tips for avoiding “phantom clients” who mistakenly believe you represent them include: (1) using client intake forms; (2) expressly stating non-engagement; (3) disclaimers; (4) avoid providing “casual” advice to friends and family.
2. Engagement Agreements
Always use written engagement agreements in order to set the scope of a matter and to establish the identity of your client.
3. Referral Fees
Always inform clients when you pay referral fees. Attorneys who receive referral fees should also be aware that they could potentially be held vicariously liable for negligence.
4. Representing Multiple Parties
When representing multiple parties in a lawsuit, be sure to identify potential and actual conflicts among your clients and obtain advance written waivers.
Keep in mind that an attorney’s duty of confidentiality and duty of loyalty survive termination of a representation and prevent an attorney from later representing an adversary of a former client that is substantially related to the prior representation.
6. Expert Opinions
Avoid giving mediation briefs to your expert witnesses. Experts cannot base their opinions on matters precluded by law and because mediation briefs are not discoverable or admissible, a court can exclude testimony of an expert witness who relied on material in a mediation brief to formulate an opinion.
7. Ending the Representation
Always send written confirmation when terminating a representation in order to avoid claims of continuing representation and to trigger the accrual of the statute of limitations.
8. Cyber Security
The duty of competence requires attorneys to keep abreast of the benefits and risks associated with relevant technology. This includes maintaining adequate security measures in order to safeguard their clients’ funds and confidential information.
9. Social Media & Advertising
Always confirm that your website includes disclaimers of guarantees and does not contain any misleading information.
10. Pursuing Unpaid Fees
The statute of limitations for legal malpractice claims is one year, so attorneys should wait until at least one year from the end of representation before pursuing claims for unpaid fees.
About the author
Peter Roldan is a partner with Emergent, a commercial litigation firm based in San Francisco. He represents policyholders in insurance coverage and bad faith litigation.