By Travis Pickens
A Checklist of Policies and Procedures for an Ethical Law Practice
Whether you’re a sole practitioner, a partner in a firm or anywhere else managing other lawyers, you must take reasonable steps to ensure your practice conforms to the Oklahoma Rules of Professional Conduct. You are also responsible for the conduct of the nonlawyers in your employ. Below is a checklist of best practices to follow that hopefully will protect you, your practice and your clients.
A Formalized Hiring Policy — Develop a structured protocol for hiring staff. Call and question references, and get permission to do appropriate credit and background checks. Your safety from disciplinary violations is no greater than the people who work for you. Consider hiring certified legal assistants and paralegals who have already had training regarding a law practice and the Oklahoma Rules of Professional Conduct.
An ‘In-House’ Ethics Compliance Lawyer — This should be a supervising lawyer or partner. Every firm or law department needs someone to be a “first-responder” and to take responsibility for putting in place the required measures for ethics compliance. My office can help this lawyer develop educational and training materials for staff orientations and updates.
Written Employment Contracts and/or Office Ethics Policies With Your Staff — You will likely want to be wary of modifying “employment at will” but you will also want a commitment from your staff as to certain matters pertaining to maintaining professional ethics. You might prefer to do this in the form of a job description or as an office policy. Such may require them to:
- read the Oklahoma Rules of Professional Conduct
- abide by the rules
- participate in office ethics training
- report any potential concerns or violations of the rules
- maintain strict confidence of all client matters (e.g. including social network use)
New Employee Ethics Training — This is an orientation for new staff generally covering the rules, their importance, consequences for violation and explanation of internal reporting procedures. Develop written materials, including a copy of the rules and comments. My office can be a resource for this.
Ongoing Ethics Updates For All Attorneys and Staff —These are periodic reviews and updates as to ethics issues. They may be quarterly, for example, unless new developments dictate otherwise. They should cover new cases, new rules, and new ethics opinions. They should also be a forum for employees to express concerns as to existing procedures or ideas as to how they should be modified. My office can be a resource for this.
Conflict Controls — Make sure this is carefully followed each and every time, and include your non-attorney staff in the distribution chain (they may have a better memory than you or have a relationship, business or personal, with someone you are about to sue). Keep a list of all clients you have represented and all matters that can be searched easily and accurately. Remember conflicts may be created by a wide variety of factors, e.g. current clients, former clients, third parties, the lawyer’s own personal interest, prior employment, business transactions, who is paying the bill, book deals, co-defendants, ownership in the subject matter and/or a sexual relationship.
Docketing Procedures — Double calendar (you and your assistant) your entries, set up reminders, and have daily offsite backup. Do not rely on someone else to calculate response times and deadlines unless they have been thoroughly trained, and never rely upon them exclusively. Always calculate important deadlines yourself, and then have someone double check your work.
Computer and File Safeguards — Confidentiality and reliable uninterrupted access are the key considerations. Use an IT professional for this vital, ever-changing area. This is an ongoing process. Use daily offsite backup.
Website and Advertising Review — Run all advertisements and website pages through the same person or committee for consistency and compliance. All content must be accurate and not deceptive. Certain key information, e.g. name and phone numbers, of course is included in every ad, but there are rules that address content. By rule, ads and websites must contain:
- accurate, non-deceptive information
- lawyer’s name or firm name responsible for the content
- office address
- jurisdictional limits of lawyers (if licensed elsewhere than Oklahoma)
Ads and websites may contain:
- telephone, email and fax numbers
- areas of law and types of services (but not “certified” unless patent or admiralty)
- how fees are determined
- foreign language ability
- references (with consent)
- clients typically represented (with consent)
- “other information that might invite the attention of those seeking legal assistance”
- awards and settlements (if you obtain the client’s consent, it is accurate information and there is an appropriate disclaimer. See Oklahoma Ethics Opinion No. 320)
Keep a Hard Copy of Significant Oklahoma Ethics Opinions, With a Topical Index — This is the one time a computer search is slower than the hard-copy version. Remember, rule changes may make a particular ethics opinion obsolete or merely helpful as to how to think about an issue. Also remember that the ethics opinions and those of my Office of Ethics Counsel are advisory guidance only and not binding. The Oklahoma Supreme Court remains the ultimate authority.
Fireproof Vault or Storage for Valuable Client Documents — Do not become a long-term bailee of client property unless you absolutely must. If you do, then make sure to have the right kind of storage, or rent proper storage at a bank.
Carry Adequate Office Insurance — This is the policy that covers office contents and liability. Make sure it includes adequate limits for all your contents, including but not limited to furniture, research books and disks, computer software, hardware, phone systems and other electronics. You should also have sufficient limits for valuable papers. Hired and non-owned coverage protects you from liability for an accident caused by a hired courier or employee making a delivery. Of course, you must also have workers’ compensation insurance for your attorneys and staff. Many lawyers and firms do not pay enough attention to this sort of insurance. Work with an experienced agent and ask specific coverage questions. By the way, it is a good idea to urge your attorneys to carry full liability coverage on their own vehicles, and a personal umbrella policy. An uninsured or underinsured attorney in-creases the chances the law firm will be sued for an accident.
Document Retention Policy — This should be part of every fee agreement you use, either within the body of the agreement or as a separate attachment. See the Ethics Advisory posted on our webpage at www.okbar.org for details.
Fee Agreement — You should use a written fee agreement for every client matter. Consider including at least the following:
- how the fee will be calculated, billed and collected: e.g. hourly rate, contingency fee or flat fee
- the specific client
- the scope of the representation (be precise)
- the client’s obligations (e.g. timely payment, cooperation, etc.)
- how expenses will be paid
- interest charges on unpaid attorney fees (other law may apply)
- mediation and/or arbitration provisions in the event of a fee dispute
- venue and controlling law provisions
- refunds for unearned fees or unaccrued expenses
- when you may terminate representation
- when the client may terminate representation (anytime)
- how final billings, accountings and settlement statements will be done
- explanation of attorney’s lien rights
Explanatory Materials — These materials cover the information that is not necessarily fee related but still very important to the client and to your own interest in setting reasonable expectations for the client (and covering yourself). Consider including the following:
- office location
- hours of operation
- when telephone calls and email may be returned
- firm history
- biographical information, including awards and honors
- firm or department mission statement
- the “anatomy” and chronology of a lawsuit or other matter
- options such as mediation and arbitration for the client’s dispute
- attorney-client privilege (and waiver)
- the confidentiality and evidentiary dangers of using social networks
- how trials (jury and non-jury) proceed
- how mediations proceed
- what litigation costs are typical
- the potential for being ordered to pay attorney fees and costs if the client does not prevail
- statutes of limitation and/or repose
Fee Split Provisions — This is another area that can create some confusion. When you and someone outside your firm both work on a matter there are two ways to split fees:
1) Both lawyers work on the matter, but there is only one bill and you may split the fees in accordance with how much work each lawyer does on the matter
2) Only one lawyer actually works the matter, but the other must assume joint representation for the matter (e.g. includes both financial and ethical responsibility for the representation as if the lawyers were associated in a partnership)
Either way, the client must agree in writing to the arrangement and the overall fee must be reasonable.
Trust Account Training for Employee or Outside Staff — You can delegate certain tasks pertaining to a trust account but you may not delegate the responsibility for it. In other words, someone else can make the deposits and do the books but you must supervise, monitor and be responsible for the account. It is a non-delegable duty. The OBA has ample resources to help you train yourself or your staff for proper trust accounting. There are CLE materials and OBJ articles and a recently produced webcast that are all available on the OBA website at www.okbar.org through archived CLE. My office can help you select a proper set of materials.
Develop a CLE Curriculum for Your Lawyers — Be intentional about the continuing education you take, or pay for others to take. Set up a review process so that lawyers taking CLE paid for by the employer meet the educational goals of your department or firm. Recommend certain seminars for your associates or staffs.
Set Up a Review Process for Taking or Terminating a Representation — Bad clients and matters can lead to unpaid fees and bar complaints. A bad client is someone or some entity that, for example, is dishonest, unreasonably does not follow your advice, and/or will not pay a reasonable fee for the services provided. These types usually go through several lawyers. Similarly, indelicate or hostile terminations of representations by lawyers lead to bar complaints that would otherwise not be filed. For both these stages, it is prudent to have more than one person evaluating the client, the matter, and the mode and timing of a withdrawal. In evaluating potential clients, it is often helpful to have a legal assistant sit in on the initial interview. They may pick up on things that you do not. Also, they make great witnesses in the event there is a dispute later as to what was said.
Develop Standard Protocols for First Consultations With Prospective Clients — If you delve too far into a matter in the first meeting with a potential client that eventually does not hire you, you may learn information that you will be obligated to keep confidential and that will disqualify you or your firm from representing the adverse party. Until a potential client retains you to evaluate their matter and represent them, keep the initial exchange of information on a general level. For example, talk about the parties involved, the matter to be undertaken, the background and experience of your firm, fees and expenses and how you operate. This issue is more common in smaller communities where clients may be tempted to “conflict out” the other lawyers in town they see as a threat, or when clients are simply price shopping, but it is something to keep in mind no matter where you practice.
Select and Join Worthwhile Organizations and Associations Related to Your Practice — The OBA and ABA offer a great value for the dues, as do other organizations and publications. The ABA also has the Center for Professional Responsibility, which for an additional charge, will give you access to research assistance, and all the ABA ethics opinions as well as updates on the Model Rules (the Oklahoma Rules vary a bit of course). The key here is to be selective and join only those organizations and associations that you will actually use and benefit from.
Purchase Adequate Professional Liability Insurance — Carrying adequate professional liability insurance is not just for you; it is for the client’s protection as well. For the protection it provides, it is relatively inexpensive and should be carried. One aspect of having insurance that often goes underappreciated is that it includes defense costs. The claim may be frivolous but you must still defend it, and you will want an independent, experienced attorney defending you.
Develop A Succession and Disaster Plan for Your Law Practice — This issue is particularly important for sole practitioners. You should have a plan for the succession of your law practice just as you should for your personal estate. You should identify another lawyer with a similar practice who, in the event of your death or disability, can step in and notify clients and take whatever immediate action is necessary to protect their interests. This does not mean that the successor attorney must enter an appearance and continue the representation. Typically, what is involved is notifying the client, courts, opposing counsel and the OBA general counsel. Assuming representation is an option for the successor attorney but only if the client has given consent. Ultimately, the client always decides who will represent them and should be notified of that responsibility as soon as possible.
A disaster plan should be developed in the event of a major event that knocks out your practice, like a fire or tornado. There is a great deal of information on this from our management assistance program, Jim Calloway and from other jurisdictions.
Maintain Work/Life Balance and Face Issues Head On — Much has been written about work/life balance, but what has not been emphasized as much is the direct impact imbalance has on the clients we serve. Indeed, imbalance or a substance or mental health issue makes ethical violations much more likely. Furthermore, if you are a supervising attorney at your firm or department, you may be held personally responsible for enabling or ignoring an issue by a subordinate lawyer who impacts a client. Thankfully, the majority of us have matured to the point that we seek the quality help available to us through the Lawyers Helping Lawyers Assistance Program, the LHL Foundation Inc. and other providers.
Hire Great People.
ABOUT THE AUTHOR
Travis Pickens serves as OBA ethics counsel. He is responsible for addressing ethics questions from OBA members, monitoring Diversion Program participants, teaching classes, speaking at continuing education programs and other law-related seminars and writing articles for The Oklahoma Bar Journal and other publications. A former litigator in private practice, he has served as co-chair of the Work/Life Balance Committee and as vice-chair of the Lawyers Helping Lawyers Assistance Program Committee.
Originally published in the Oklahoma Bar Journal -- Dec.8, 2012 -- Volume 83, No. 33.