1. Our Confidential
Relationship. Everything a lawyer (or any member of our firm)
learns about a client during the representation of the client
is confidential. We are not allowed to discuss your case or
legal matters with anyone outside the firm. We are strictly
prohibited from breaking the sanctity of the attorney-client
relationship.
What you tell your lawyer is
similar to what you tell your priest or doctor. We can't be
effective in helping you unless we know all of the facts,
including all of the unpleasant and embarrassing facts. To
encourage full disclosure by you, we are prohibited by ethics
and by law from discussing anything about your case with
anyone. The mere fact that you need a lawyer can sometimes be
a matter you don't wish to disclose. For this reason, we do
not even disclose the names of our clients unless we have
their permission.
Lawyers are forbidden to
discuss these confidences with their spouses or family
members, or to discuss a client or case in a public place
where they might be overheard.
If a lawyer brags to you
about the names or legal matters of a client, you should be
concerned about the ethics of this lawyer and whether
you can expect your name and the details of your legal
matter to be broadcast to people who might use the information
against you.
In truth and in fact, lawyers
sometimes do discuss their cases with other lawyers or with
their spouses, particularly the unusual and bizarre cases.
Normally the discussion would be in such a way that the
identity of the client could not be identified. Any lawyer who
discusses a client or client's case out of the office runs the
risk of being unethical and being disciplined by the State
Bar.
2. Contacting adverse party
represented by counsel. Contacting an adverse person
represented by an attorney is unethical. A lawyer cannot
ethically contact someone on the other side of the case, if
that person or party is represented by an attorney.
Therefore, if you have a
dispute with Mr. A, Mr. A's lawyer cannot communicate with you
orally, in writing or through a third party, and I cannot
communicate with Mr. A. Mr. A's lawyer can communicate with me
or I can communicate with him. You should not talk to Mr. A
unless we have told you to do so. You could inadvertently say
or do something prejudicial to your case. There is no ethical
restriction on the adverse parties talking to each other, but
you shouldn't talk to your adversary without first getting the
approval of your lawyer.
The most common violation of
this rule by unethical or ignorant lawyers is for a lawyer to
send a letter to his own client with a copy to the adverse
party, or for the lawyer to send a letter to the other lawyer
with a copy the other lawyer's client. If this happens to
you, please report it to us immediately.
3. Trust Accounts.
Mishandling your trust money is unethical and illegal. Lawyers
are required to have trust accounts for client funds; they may
not mix client funds with personal funds and may not borrow
funds from the client funds. Unless we make special
arrangements, under New York State law, interest on trust
accounts goes to the State of New York. The State allocates
the interest for purposes related to the improvement of the
administration of justice, including, but not limited to, the
provision of civil legal services to groups currently
underserved by legal services, such as the elderly and the
disabled, and the enhancement of civil legal services to the
poor through innovative and cost-effective means, such as
volunteer lawyer programs and support and training services.
4. Fee Problems. Fee problems
can also be ethics problems in certain cases, such as where a
fee amount might be excessive in view of the facts involved.
Most local Bar associations have a procedure for arbitrating
or deciding fee problems between lawyers and clients. This
firm is always willing to discuss fee problems and recognizing
there can be honest differences of opinion over fees, we are
always willing at the inception of a fee dispute, to let the
Bar Association arbitrate a fee problem. The Bar Association
fee arbitration committees usually bend over backwards to
protect the client. Normally, fee problems are not ethics
problems but on some rare occasions they are.
5. Conflicts of interest. A
lawyer cannot ethically represent both sides where there is a
dispute, or a potential dispute, unless all parties agree. A
lawyer must ethically do his or her best for the client. A
lawyer is not a judge deciding what is "fair and
reasonable". A lawyer normally is an advocate, out to
protect his or her client at the expense of the other party,
if necessary. For this reason, a lawyer cannot represent both
a husband and wife in a divorce or represent every shareholder
and also represent the corporation, or represent each partner
and also represent the partnership. The lawyer must steer
clear of even potential conflicts of interest, such as two
people in a criminal case where one may have to testify
against the other at a later time. Representing multiple
people against the same defendant in an accident or collection
case may be unethical where the defendant won't have the
ability to pay everybody and a decision concerning who gets
what must be made.
On the other hand, we must be
practical. The American public can't afford to go out and hire
a lawyer for every person on every nickel-and-dime deal.
Therefore, it is normal and customary in some situations for a
lawyer to, in effect, represent multiple people with actual or
potential conflicts of interests in order to save legal fees
and to expedite the delivery of the work, For example, we
might prepare all of the corporate documents affecting the
rights of the 10 shareholders instead of having 11 lawyers
(one for each shareholder and another for the corporation)
involved in the start-up of a small business. In these
situations of potential conflicts, each person will be advised
as follows:
That each person has a right to select his or her own lawyer.
To whom the firm is
looking for payment of legal fees.
That the firm will raise
questions and suggest commonly used solutions that the parties
may wish to accept, reject or modify.
Who, if anybody, the
firm would represent if there were an actual dispute at a
later date.
That each person understands there could be a
conflict of interest between that person and the other parties
and that he or she is waiving the conflict.
That the person
can, at some point, consult his or her own independent lawyer
to be sure the legal position is understood before signing the
final agreement or document.
All of the above should be
explained to all of the parties involved and preferably in
writing.
Failure to recognize and
explain conflicts of interest properly is a serious ethical
violation.
Normally, a lawyer will not
buy something from a client or sell something to a client
without sending that client to another lawyer to get
independent legal advice or at the minimum of the right of
that client to get independent legal advice from another
lawyer before signing such an agreement. Failure to do this is
a serious ethical violation.
7. Failure to communicate
with a client. Generally speaking, it is not unethical for a
lawyer not to keep a client informed of what's happening on
the case or not to return telephone calls promptly. These
practices may be bad client relations, bad business or just
plain stupid, but they are not unethical in most cases. There
are a few situations where not communicating with a client
could be unethical, but these situations usually involve the
attorney's hiding something from the client. A lawyer must act
as a fiduciary toward a client and cannot lie to, or hide
things from, the client. In these rare situations, failure to
communicate could be unethical.
8. Extortion. Occasionally
the other party in a dispute has committed a criminal act
either before, during or after the act in dispute between the
parties. (Employee embezzlement is common, but other examples
are income tax evasion or violation of some licensing law.)
The client wants to use the lawyer to threaten to expose the
person to authorities or police the person does what the
client wants (typically to make restitution or sign
documents.)
If the lawyer did what the
client wanted done it might be unethical in some states, but
it would be a crime in most states. The crime would be the
crime of extortion. (Generally, extortion is the threat of
criminal prosecution unless the other side pays the
consideration of doing what the client wants done.)
Usually, a good lawyer will
skillfully handle the situation by saying something like
"My client (we) will pursue all legal remedies," or
"My client (we) will take all steps available under the
law." Our lawyers will not knowingly write a letter in
such a way as to commit extortion.
9. Pretending to have special
influence over a judge or government official. It is usually
unethical for a lawyer to state expressly or to hint that she
or he has a special influence over a judge or government
official. The lawyer is implying that the results will be
determined by who the lawyer is rather than the merits of the
case.
Be careful of a lawyer who
expresses the ability to "fix" a case or cites some
form of special influence. This lawyer is giving you open
notice of being unethical. This lawyer might not be able to
help you if legal skills are required to win your case.
It would be questionably
ethical for a lawyer to tell you expressly how she or he and
the judge play tennis or golf together or are socially close
or go the same church. (Remember also that if the judge could
be influenced by these factors, the other lawyer representing
the other side may play more golf or tennis together or be
closer socially or be more important in the church.)
It would be proper for the
lawyer to state that he or she has appeared before that judge
and is familiar with the kind of evidence the judge looks form
or that he or she is familiar with some of the judges
idiosyncrasies or prejudices in the courtroom.
The above are obviously not
all of the possible ethical situations that could arise during
a legal matter, but are some of the more common ones.
We, as lawyers, will never
practice law unethically. We believe that, in the long run,
you, the client, will best be served by ethical lawyers. We
will be aggressive when it advances your case. We will give
common courtesies to opposing counsel if that will not harm
your case. We will never knowingly be unethical and trust that
you understand that this is in your best interest.
