Professionalism and Ethics

Most legal malpractice policies contain a prohibition against admitting liability. This prohibition creates an inherent tension between a lawyer who believes his or her professional ethics requires him or her to disclose a professional omission and the loss of insurance coverage for that omission which would otherwise be available to make the client whole for any resulting losses from the omission. This tension was observed by the Illinois Appellate Court in Illinois State Bar Ass’n Mut. Ins. Co. v. Frank M. Greenfield & Associates, 2012 IL App. (1st) 110337, 366 Ill.Dec. 761, 980 N.E.2d 1120 (Ill. App. 1st Dist. 2012). In the Greenfield case, the lawyer made a mistake in drafting a client’s will that ultimately affected the distribution of funds from a trust established by the client. When the error was recognized, the attorney sent a letter to all of the trust beneficiaries reporting the mistake which, in turn, resulted in several of the beneficiaries receiving less money than they otherwise would have received had the client’s wishes been properly implemented.

Do you remember your first time? The mere thought made your heart skip a beat, your breath a touch heavier and your palms perspire slightly. You just couldn't get it out of your head. You know, the thought that the federal government might pursue you or your client for failure to reimburse Medicare for conditional payments.

Okay, maybe this wasn't where you thought I was going, but Medicare reimbursement gives all attorneys cause to pause. What compliance options are available? On its face, the most tantalizing option involves asking opposing counsel to indemnify and hold your client harmless with regard to any claims asserted by Medicare to the settlement proceeds. While this may well be viable, tread lightly. This article provides a status update on the growing trend nationwide finding it to be ethically impermissible for an attorney to indemnify and hold another party harmless with regards to lien resolution issues.

Not too long ago, I accepted a pro bono case in which I agreed to represent a woman who was seeking a domestic abuse order for protection. I accepted the representation on a Friday and the hearing was set for the following Monday. I was unable to reach her over the weekend, so I planned to meet her on the morning of the hearing. When I arrived at the courthouse, I looked throughout the waiting area and saw a woman sitting alone in a conference room. Guessing it might be my client, I knocked on the door and entered the room. I asked her name and told her that I would be her lawyer. She immediately burst into tears. She then apologized and said that she thought I was going to tell her that I represented her abuser. We prepared for the hearing and I was able to help her get the relief she and her children needed. She thanked me for being her lawyer. I walked out of the courthouse that morning with a renewed understanding of the impact that a lawyer can make on someone vulnerable, scared and poor. She did not thank me because I was a particularly capable lawyer, or even because I was able to help her. She thanked me because I showed up.

Settlement negotiations have become integral to the profession; nearly every practicing attorney will undoubtedly engage in some type of settlement talks with opposing counsel at some point in their career. The Ethical Guidelines for Settlement Negotiation (2002) (ABA Section of Litigation) ("Guidelines") explains that the purpose of settlement negotiations "is to arrive at agreements satisfactory to those whom a lawyer represents and consistent with law and relevant rules of professional responsibility." (Section 2.1). While the Model Rules of Professional Conduct ("Model Rules") do not specifically address settlement negotiations, certain rules have a direct application to the settlement process, such as the Rules regarding truthfulness in statements and attorney misconduct. For busy litigators who strive to uphold the highest ethical standards in their practice, it is certainly worth reviewing the Model Rules of Professional Conduct, or more specifically their state-enacted version, that govern and inform an attorney's conduct throughout the settlement of a case.

Although likely a rhetorical question, as an attorney practicing primarily as a litigator, have you experienced the following scenario? Every conversation (at least from opposing counsel's end) seems to spiral into venomous words and threats. His or her every letter or e-mail drips with sarcasm—or anger. Counsel views depositions as "acts of war." In short, we've all experienced a litigation that was exhausting—mentally and physically.   

Such interactions do not necessarily have to result in a complete waste of time. They remind us—yet again—that we can have a professional relationship even with the most difficult lawyers. Here are the five things I remind myself every time I am forced to communicate with such a lawyer.

When new technological advances are used and abused by the legal profession, the typical response is to clamor for new ethics rules specific to those technologies. By the time the studies are conducted, working groups have debated the issue and public commentary has exhausted itself, the technology has quickly become dated and the next big thing has taken its place. Blogs have been overshadowed by microblogs, MySpace has been dwarfed by Facebook, and so on and so on.   Most ethics questions about the use of technology can be adequately answered by existing ethics rules without regard to medium or application.