I. INTRODUCTION
II. PATTERNS OF MISCONDUCT AND COMPLAINT AVOIDANCE
III. OBLIGATION TO REPORT MISCONDUCT
IV.. CONCLUSION
   

MAJOR DISCIPLINARY PROBLEMS1 2 3

I. INTRODUCTION

The legal profession is under assault. Public opinion polls reveal lawyers to be in remarkably low standing. Surveys reflect that members of the public, while perhaps liking their personal lawyers, think poorly of lawyers in general. Poor ethical standards among too many in the profession have produced both an assault upon the integrity of the profession and a poor image of lawyers.

Virginia lawyers must recognize that compliance with the requirements of the Virginia Rules of Professional Conduct (the Rules) requires more than honesty and a general ability to discern right from wrong. It is occasionally observed that the study of legal ethics is no more than an olfactory engagement with the established precepts of right and wrong: "if it doesn't smell right, don't do it." If legal ethics is so simple, however, how does one explain the large number of complaints filed each year against attorneys (1) or the high number of sanctions imposed against attorneys (2)? A suggested response is that legal ethics comprises a body of substantive law just as other fields of law. If this premise is correct, a lawyer's ability to comply with the requirements of the Rules will depend upon his or her diligence in studying the Rules, Comments and Legal Ethics Opinions, and his or her careful application of those requirements to his or her everyday practice. The Rules deal with legally required conduct, prohibiting conduct which is not just malum in se (prohibited because it is inherently or morally wrong), but also which is malum prohibitum (acts which are not inherently wrong in themselves but which are prohibited by law).

The Supreme Court of Virginia held in Shea v. Virginia State Bar, 236 Va. 442, 374 S.E.2d 63 (1988) that a lawyer cannot avoid discipline by claiming ignorance of a particular rule of conduct. Every lawyer in Virginia is expected to be fully aware of each and every disciplinary rule. The rules are public and are disseminated to the bar in the Virginia State Bar Professional Handbook. No lawyer can escape a finding of a violation or the imposition of an appropriate sanction by saying, “I did not know I was violating the rules.” Such an argument is nothing more than a recitation of the often made and always rejected excuse of ignorance of the law. 236 Va. at 444.

This outline will introduce the patterns of misconduct most frequently cited in ethical complaints filed with the Virginia State Bar. The specific Rule violation involved in each of these patterns will be the subject of detailed discussion in other outlines of this publication.

These are some of the terms used in professionalism issues:

Comments - Commentary is published as an accompaniment to the Rules (see below) to explain more fully the requirements that they impose. Often, these comments include hypothetical situations, in which certain types of behavior are categorized as permissible or impermissible. They often also include goals for attorney behavior which, although not mandatory, are aspirational in nature. The Comments serve a function analogous to that of the Ethical Considerations (see below), under the former Virginia Code of Professional Responsibility.

Disciplinary Rules - Rules promulgated by the Supreme Court of Virginia, in conjunction with Ethical Considerations (see below) and Canons (see below). These rules, which have been superseded by the Rules of Professional Conduct (see below), were largely based upon the Model Code of Professional Responsibility.

Ethical Considerations - Aspirational statements promulgated by the Supreme Court of Virginia in conjunction with the former Disciplinary Rules (see above). These considerations did not impose requirements beyond those of the rules, but they did express guiding principles similar to the current comments to the rules.

Rules of Professional Conduct - Rules promulgated by the Supreme Court of Virginia effective January 1, 2000. These rules are mandatory in character; that is, a lawyer must be in compliance with their respective requirements, or face disciplinary sanctions. Each is accompanied by Comments (see above).

Legal Ethics Opinions (LEOs) - Opinions rendered by the Virginia State Bar Legal Ethics Committee. Some are granted specific approval by the Virginia Bar Council and the Virginia Supreme Court. These opinions are rendered in response to hypothetical opinion requests. They are numbered and published. Lawyer Advertising Opinions (LAOs) - The Virginia State Bar Standing Committee on Lawyer Advertising and Solicitation (SCOLA) renders opinions on issues pertaining to lawyer advertising and solicitation. Like LEOs, they are published.

 

Rules of Professional Conduct - Rules promulgated by the Supreme Court of Virginia effective January 1, 2000. These rules are mandatory in character; that is, a lawyer must be in compliance with their respective requirements, or face disciplinary sanctions. Each is accompanied by Comments (see above).

Legal Ethics Opinions (LEOs) - Opinions rendered by the Virginia State Bar Legal Ethics Committee. Some are granted specific approval by the Virginia Bar Council and the Virginia Supreme Court. These opinions are rendered in response to hypothetical opinion requests. They are numbered and published.

Lawyer Advertising Opinions (LAOs) - The Virginia State Bar Standing Committee on Lawyer Advertising and Solicitation (SCOLA) renders opinions on issues pertaining to lawyer advertising and solicitation. Like LEOs, they are published.

1 In fiscal year 2012, there were 3,867 new inquiries filed with the Virginia State Bar. There are 29,591 lawyers licensed by the VSB as active members and 884 licensed as Virginia Corporate Counsel. This translates to approximately one complaint for every eight lawyers.

2 In fiscal year 2012, 223 sanctions were imposed involving 168 respondents.

3 Of the 1031 formal investigations opened by bar counsel in fiscal year 2012: 292 involved criminal practice, 219 involved family law, 59 involved general civil litigation cases, 43 involved real estate practice, 36 involved estate planning, 49 involved personal injury cases, 33 involved bankruptcy, and 24 involved immigration.

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II. PATTERNS OF MISCONDUCT AND COMPLAINT AVOIDANCE

A. Introduction

For the past 15 years, the Virginia State Bar has maintained records of the complaints filed with it. These records reveal the frequency with which clients and others have complained about certain lawyer conduct and the areas of law involved in those complaints. Familiarity with these patterns of alleged misconduct may afford lawyers an opportunity to take appropriate steps to avoid the filing of complaints against them.

B. Complaints by Area of Law

1. Frequency

Complaints of lawyer misconduct filed with the Virginia State Bar have consistently been concentrated in certain subject matter areas of practice. For instance, complaints occur with much greater frequency in the areas of (a) Criminal Law (47%); (b) Divorce & Family Law; (c) Real Estate; (d) Personal Injury; (e) Collections; (f) Estate Planning/Administration; and (g) Bankruptcy. On the other hand, matters involving (a) Banking; (b) Corporations; (c) Environmental; (d) Insurance; (e) Professional Malpractice; (f) Securities; (g) Tax Law; (h) Patent and Trademark; and (i) Pension & Profit Sharing are much less frequently the basis of ethical complaints.

Of the 1,006 formal investigations opened by bar counsel in 2010: 269 involved criminal practice. 184 involved family law, 84 involved general civil litigation cases, 67 involved real estate practice, 57 involved estate planning, and 56 involved personal injury cases.

The incidence of complaints filed to initiate disciplinary proceedings in those areas of practice does not also reflect the incidence of professional malpractice actions or the relative risk of civil liability in each of those areas of practice.

2. Observations

A number of factors may influence complaints arising out of a particular area of practice, particularly in those areas in which the frequency of complaints is very high. Among these factors are the following:

a. Profile of Clients

The practice areas most frequently giving rise to complaints are traditionally thought to involve clients who are less educated, less sophisticated and also less likely to have personal experience with the particular legal issues involved than clients in other practice areas, thereby increasing the likelihood that the client will blame his or her lawyer for undesired results or be unable to assess the competency with which services were rendered.

b. Continuing Versus Limited Relationship

The practice areas frequently giving rise to disciplinary proceedings generally involve limited attorney-client relationships, relating to single transactions or isolated proceedings. On the other hand, the practice areas infrequently involved in ethics complaints typically involve continuing, and often long-standing, attorney-client relationships. Factors which may be significant in this regard are (1) increased loyalty on both parts, (2) better knowledge and understanding of client's needs and (3) better lawyer responsiveness (i.e., client seen as important).

c. Circumstances

The areas most often giving rise to complaints are those in which clients are traditionally perceived to be more emotional, thereby increasing the likelihood that the client will have difficulty effectively assisting counsel and understanding communications from counsel, and that the client may transfer his or her emotions from the situation to the lawyer personally. For instance, a husband who feels that he has been betrayed by his wife and that she is trying to "take him for everything" may be more prone to distrust his attorney and allege conflict of interests, excessive fees or other misconduct on the lawyer's part.

d. Common Complaints Against Lawyers

1. Failure to keep a client informed about the status of the engagement

2. Failure to meet deadlines

3. Misunderstandings regarding legal fees and costs

4. Incompetent legal services

5. Attorney/client conflict with personal interest

6. Attorney conflict with present/former client

7. Improper handling of trust funds

8. Disingenuous conduct with regard to a client, an adversary, or a court

9. Improper or prejudicial withdrawal as counsel

10. Improper communications with adverse party

3. What can one do to avoid complaints?

There is no guarantee that a lawyer will successfully conclude his or her legal career without a complaint being filed with the bar. Nevertheless, the following are some "tried and true" suggestions which should greatly reduce the possibility of a complaint. As an aside, these suggestions may also aid the lawyer in developing a reputation of competency and professionalism.

a. Maintain an open line of communication with your clients.

1. Establish a clear understanding with the prospective client at the initial interview regarding (a) the scope of the representation and (b) the fees and costs associated with the engagement.

2. Use non- and disengagement letters.

3. Consult with clients on all significant matters in the case. Remember that the experience may be "old hat" to you, but will probably be unique to your client. When in doubt as to what may be significant, communicate.

4. Clients do not like to feel that they are being ignored. If you cannot return calls, delegate the calls to your assistant.

5. Inform clients of realistic and achievable goals, time expectations and your authority as an attorney; recognize your limitations and share those with your client. Do not make promises you cannot keep.

b. Clearly explain your fees, costs, and billing practices at the inception of the engagement.

1. Use written and detailed fee agreements. Although written fee agreements are not required in Virginia, there is considerable wisdom in following the suggestions in Ethical Consideration 2-21 (see below), which are broader than the requirements of Rule 1.5(b).

As soon as feasible after a lawyer has been employed, it is desirable that he or she reach a clear understanding with his or her client as to the basis of the fee charges to be made. Such a course will not only prevent later misunderstanding but will also work for good relations between the lawyer and the client. It is usually beneficial to reduce to writing the understanding of parties regarding the fee, particularly when it is contingent.

2. Maintain proper trust account records, expense records, and properly account to your client for fees, costs, and client funds placed in the trust account. Remember that the client is entitled to an adequate explanation of the fees and costs incurred during the engagement. DR 2-105; Rule 1.5(b).

3. Maintain detailed and adequate time records, and bill clients regularly with itemized bills.

4. Do not withhold services simply because your client has an outstanding bill. There are ways in which one may ethically withdraw from representation, but one surely asks that a complaint be filed if the attorney simply refrains from working until the bill is paid.  Rule 1.16; LEOs 974, 996, 1325.

5. If there are questions regarding your bill, be available to discuss them with your client.

6. The Standing Committee on Legal Ethics has issued a compendium opinion (LEO 1606) regarding legal fees.

7. If the professional engagement is terminated, do not withhold the client’s file as security for unpaid fees. The file should be delivered to the client with reasonable promptness. LEO 1690; Rule 1.16 (e).

c. Accept employment only in those areas of law in which you are competent.

Rule 1.1 states that:

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

Either decline employment in which you are not competent, refer the client to a competent lawyer or engage a competent practitioner to assist you. LEO 1406. Remember that the client must know of, and approve, the employment of additional counsel. Rule 1.5 (e) (1).

d. Do not compromise your independent professional judgment.

1. Problems frequently arise when an attorney agrees to represent several clients in a matter when they have differing, or potentially differing, interests. Examples that come to mind are (a) partnership formations (LEO 1082); (b) driver/passenger automobile accidents (LEOs 299, 357, 566, 1033, 1134); (c) uncontested divorces with stipulated settlement agreements; and (d) multiple criminal defendants (LEO 1796). Rule 1.7 allows an attorney to represent multiple clients following full disclosure of any conflict by the attorney and informed consent by the client, and provided that the lawyer reasonably believes that he can adequately represent the interest of each. Nevertheless, such representation is fraught with potential peril.

2. Use a system to screen prospective clients for actual and potential conflicts of interest (LEO 1794 at n.2). A conflict gone bad will mean that not only must the lawyer withdraw from the latter representation, but he or she generally must withdraw from the existing representation as well.

3. If you do represent clients whose interests conflict, be sure to commit the disclosure of conflict to writing and have the client sign it.

4. Avoid business and personal financial dealings with your client.

e. Bring the engagement to closure.

1. At the conclusion of the engagement, return all client property and any unearned fees or unused costs. It is also wise at this point to send a disengagement letter. LEOs 646, 1246.

2. If you have been discharged during the course of the representation, consult Rule 1.16. You must take all necessary measures to avoid foreseeable harm to the client. This admonition holds true if you have withdrawn as counsel. LEO 1246.

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III. OBLIGATION TO REPORT MISCONDUCT

DR 1-103 has been replaced by Rule 8.3(a), which states that "a lawyer having reliable information that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer shall inform the appropriate professional authority. However, application of this Rule is governed by Rule 8.3(d):

This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge who is a member of an approved lawyer’s assistance program, or who is a trained intervenor or volunteer for such a program or committee, or who is otherwise cooperating in a particular assistance effort, when such information is obtained for the purposes of fulfilling the recognized objectives of the program.

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IV. CONCLUSION

Honesty and general personal integrity are certainly essential attributes of every good Virginia lawyer. However, as the other outlines in this publication emphasize, the Rules of Professional Conduct place a substantial premium upon knowledge of the Rules, Comments, Legal Ethics Opinions and the careful application of those requirements by Virginia lawyers to their everyday practice. Cf., Shea v. Virginia State Bar, 236 Va. 442, 374 S.E.3d 63 (1988) (every lawyer in Virginia is expected to be fully aware of each and every disciplinary rule and cannot escape a finding of misconduct or the imposition of a sanction by claiming ignorance of the rules). Lawyers who are diligent in these areas will experience not only the personal satisfaction of playing a role in maintaining our profession as one of which we are proud to be a member, but will also find that the discipline and professionalism demanded by the Rules of Professional Conduct have provided him or her a foundation upon which a strong and rewarding practice may be built.

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Copyright © 2013 Virginia State Bar. All rights reserved. Updated 11/01/13