Ethics Counsel on www.OKbar.org

Educating Your Assistants

By Travis Pickens

Lawyers who hire, manage or supervise non-lawyer assistants must make reasonable efforts to ensure their non-attorney assistants’ actions are compatible with the Oklahoma Rules of Professional Conduct. Supervising lawyers must put specific measures in place to do this. Initially, it would be helpful to educate assistants as to what the disciplinary system is, and for the sake of the lawyers with whom they work, the consequences for violations. The following is an example of an educational tool you may wish to provide: a general overview of the rules and disciplinary system written without  legalese. 

OVERVIEW OF THE ORPC AND THE DISCIPLINARY SYSTEM FOR NON-LAWYERS

1. Lawyers are bound by the Oklahoma Rules of Professional Conduct (ORPC), a set of rules approved by the Oklahoma Supreme Court. There are 58 rules in the ORPC. Non-attorneys are not directly bound by the rules, but the lawyer or lawyers who supervise or arrange for the work may be held responsible and disciplined for violations made by the non-lawyer.

2. Each state has its own set of rules, but most states — including Oklahoma — take their rules from the “model” rules of the American Bar Association. Each state typically makes a few changes reflecting regional differences or attitudes.

3. The rules require certain conduct from lawyers as minimum standards.

4. If a lawyer violates a rule, and it is reported to the General Counsel of the Oklahoma Bar Association, it will be evaluated. In some cases, an investigation reveals a potential
violation of the rules.  

5. The most serious violations relate to a lawyer’s honesty, integrity and fitness to practice law.

6. The ORPC covers the client-lawyer relationship, the role of “counselor,” the role of “advocate,” transactions with persons other than clients, law firms and associations, public service, information about legal services (advertising), and maintaining the integrity of the profession.

7. For example, lawyers must not lie, cheat, steal, mislead, conceal, delay, disclose confidences, act against a client or a former client, hide evidence, get romantically involved with their clients, let their client lie, or communicate with an opposing party who has a lawyer.

8. Lawyers sometimes must report violations of other lawyers, but have no duty to report their own violation of a rule, just as a person has no duty to incriminate him or herself. Sometimes it is advisable for the attorney to do so under certain circumstances.

9. One does not need to be a client to file a complaint against a lawyer; however, the office of General Counsel can take all factors into consideration in evaluating a complaint, including the credibility of the complainant. The vast majority of bar complaints made against lawyers are without merit or otherwise do not rise to a violation that can be proven by the standard – clear and convincing evidence.

10. A group of seven people (five lawyers and two non-lawyers) called the Professional Responsibility Commission (PRC), decides whether individual grievances should be prosecuted by the General Counsel.

11. If directed to proceed by the PRC, the General Counsel will file a disciplinary action against
the lawyer with the Oklahoma Supreme Court specifying the behavior and rule(s) alleged to be violated. In most cases, the matter will be internet-accessible to the general public once the lawyer files a response.

12. The proceeding will be tried before a trial panel of the Professional Responsibility Tribunal (PRT)(two lawyers and one non-lawyer), which then makes a report and recommendation to the Oklahoma Supreme Court. The Court will take the entire trial record from the PRT and look at the case as though it was new. It can do whatever it thinks best and has no obligation to defer to the PRT. The case may be dismissed by the Supreme Court for lack of merit, discipline imposed, or some other action as the Supreme Court deems appropriate. If discipline is imposed, it varies from a private reprimand, to a public reprimand, to suspension, to disbarment.

It would be wise to prepare additional educational materials for your assistants to be used in office meetings and orientations regarding compliance with the ORPC. These materials might include information on trust accounts and confidentiality (including the need for social networking policies), for example.

My office is producing other educational materials for you and your staff to use in your practice, and they will be published in the Oklahoma Bar Journal and/or on the OBA website. These publications will be provided as a service to you, our members, as examples for you to modify and use as you see fit. They are not meant as a substitute for reading and learning the Oklahoma Rules of Professional Conduct themselves.

Originally published in the Oklahoma Bar Journal -- Sep.8, 2012 -- Volume 83, No. 23

Travis Pickens is the OBA Ethics Counsel. He can be reached at ethics@okbar.org