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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.
(2). In fiscal year 2009, 236 sanctions were imposed involving 173 respondents.
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 2011, there were 3,762 new inquiries filed with the Virginia State Bar. There are 29,060 lawyers licensed by the VSB as active members and 893 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 883 formal investigations opened by bar counsel in fiscal year 2011: 219 involved criminal practice, 168 involved family law, 62 involved general civil litigation cases, 62 involved real estate practice, 41 involved estate planning, 62 involved personal injury cases, 37 involved bankruptcy, and 17 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; (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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