The Bench & Bar magazine is published to provide members of the KBA with information that will increase their knowledge of the law, improve the practice of law, and assist in improving the quality of legal services for the citizenry.
Issue link: https://kentuckybenchandbar.epubxp.com/i/450788
PERFORM THE WORK PROMISED SCR 3.130(1.3) simply says "A lawyer shall act with reasonable diligence and promptness in representing a client." As lawyers we are required by ethical rule to timely perform the work we have contracted to do. The rule is tied directly to representing clients and has a double requirement: do the work and do it on time. The commentary to the rule says "Perhaps n o professional shortcoming is more widely resented than procrastination." More than any inconvenience they suffer, clients hate most having their matters postponed. Not only does failure to perform get us in ethical trouble, but delay erodes client confidence. We already know that client confidence is the lifeblood of law practice and drives business. As I discussed in a prior article, the practice of law is a public calling. The ethics rules are designed to require the practice of law to be a public service profession. Public service means serving the public. Although public protection drives the Court's philosophy in regulating the legal profession, the rule does not demand perfection or superhuman effort. Reasonable diligence on behalf of the client is all that is required to avoid ethical difficulties. Lawyers are familiar with the "reasonable man" performance standard. Practically, it means to deliver what you promise and on time. Be realistic about assessing what and when the work you undertake can be accomplished. The best way to keep clients happy and to stay out of ethical trouble is to under-promise and over-deliver. KEEP COMMUNICATION LINES OPEN SCR 3.130(1.4) says in effect, "keep the client reasonably informed." In an early scene of the 1967 movie "Cool Hand Luke," the young prisoner Luke Jackson, played by Paul Newman, can't conform to prison life. Strother Martin, playing the Captain, warns Luke to learn to get along – "What we've got here is a failure to communicate!" Luke's failure to get along and obey the rules causes his downfall. But the Captain's classic statement applies equally to him as to Luke. The Captain's failure to instill the rules in Luke leads to tragedy and destruction. "Failure to communicate'"is the second big reason lawyers get into ethical trouble. Communication is essential to the a ttorney-client relationship. It's the client's matter; the client's file; the client's cause of action. Successful client relations are a part o f public protection. Public protection is the primary justification for having the ethical rules. Keeping the client informed means r eturning that dreaded phone call to that disagreeable client even though you already know how it will go. We all have the s ame tendency to postpone bad news, dodge stressful situations, and avoid unpleasant people. But when your license i s on the line, you don't want to give a bad client a good reason to file an ethics complaint. KEEP CLIENT MONEY SEPARATE SCR 3.130(1.15) requires attorneys to keep client and third persons' money and property safe and separate from the lawyer's own. "Other people's money" is required to be kept in a separate account. Almost all banks operating in Kentucky are familiar with and offer IOLTA accounts for attorneys handling "other people's money." See SCR 3.830. Best practices suggest keeping records of escrowed funds for at least five years after the relationship ends. If the rights to the money being held in an IOLTA account are contested, keep disputed funds separate from your own funds until the dispute is resolved. Then see that the money or property is paid or distributed promptly to the appropriate persons. If you are holding deposits for future work, then keep unearned funds separate from money you have earned, and return unearned funds promptly after the work is done. WHAT BEHAVIOR WILL AVOID DISCIPLINE? There are a thousand reasons for not obeying the rules. And a thousand is not an exaggerated number offered simply for dramatic effect. The KBA Office of Bar Counsel opens about a thousand cases a year. Those lawyers whose conduct has not conformed have used many excuses for not living up to their profession's standards. But there is one good motivator for following the rules without excuse – your license to practice law. What to do? How to avoid discipline? First, when in doubt, read the rules. The Supreme Court Rules of Professional Conduct are a guide to avoiding discipline. The ethics rules for Kentucky were derived from the ABA Model Rules of Professional Conduct which most states have adopted in some form for their own bar. Ours are codified in SCR 3.130. Look toward the b ack of that brown paperback rules book that you keep right next to your phone and computer. Look beyond the Kentucky Rules o f Civil Procedure, the Kentucky Family Court Rules, the Kentucky Rules of Criminal Practice and the Kentucky Rules of E vidence. For 2014, the Kentucky Rules of Professional Conduct begin at page 209 of WEST'S Kentucky Rules of Court, Volume I – State. The rules of professional conduct are mostly rules of proscription. That means the rules recite what not to do. They describe conduct which is not permitted rather than stating what activities or actions are proper. For the vast majority of KBA members, ethical compliance is no obstacle to competent practice. The Rules require no special talent or dedication. They are rules of common sense for reasonable behavior. So the best answers on how to avoid discipline are modest and elementary. Perform the work you undertake and perform it diligently, conscientiously and promptly. Communicate with your clients. Keep the clients informed of the status of their legal matters. Answer questions and comply with clients reasonable requests for information. Keep track of other people's money. Escrow accounts are not slush funds or emergency accounts to borrow from when the operating account is low, regardless of intent to repay. No event triggers a bar complaint more than an unhappy client who feels left out and uninformed. So it's a good idea to establish an office management system or to implement your own standard routine for promptly returning emails, texts and phone calls. For your own sake and sanity keep some record of your phone, letter, emails or in-person communications. Then you will be reasonably assured of staying out of the discipline statistics and avoiding the big three problem areas. 31 B&B; • 1.15