Ethics Counsel on www.OKbar.org

Mere Professional Conduct

By Travis Pickens

Oklahoma Rules of Professional ConductEthics is a burgeoning area of law.  At the same time, it is an area of increasing public interest, scrutiny and danger.  We must be ever vigilant and cannot afford to simply attempt to “intuit” compliance. There are some bedrock practices that are essential to the Oklahoma Rules of Professional Conduct.  These mere essentials are the core of an ethical practice.  Follow them, and you will avoid many of the snares and troubles that we face every day.

1.  Consistently Reread the Oklahoma Rules of Professional Conduct and comments.  There are 57 rules. Covering one set a week is about right.  The Rules are short, the comments longer, but neither too long to delay this important task.  And, you need to read the book, not just articles and reviews of the book.

2. Read and reflect upon the opinions issued by the Supreme Court.  The Supreme Court opinions, and the occasional Courts of Appeal opinions, interpreting and applying the Oklahoma Rules of Professional Conduct are the final word as to application of the Rules. Nothing brings the Rules into focus like reading cases with lawyers in actual situations.  The Oklahoma Supreme Court is the final arbiter and much can be learned from its somber tone, the academic detail, and the consideration of discipline it often imposes.  This is serious business.

3. Treat ethics like you do the areas of law you practice for money. You cannot hope to comply with the Oklahoma Rules of Professional Conduct simply by “feel.”Instead, treat your professional responsibilities as a full-fledged part of your everyday practice.  Know it like you do the areas of law you practice for money.  That means research, study and implementation.  You will be never be out of danger until you do.

4. Appoint a lawyer to be your in-department ethics “expert.” Everyone should know the Rules and read the cases but you should make it someone’s formal responsibility. They should read the pertinent cases and articles, report, and propose changes in office policy or procedure as necessary.  After all, we appoint lawyers to be in charge of computers, copiers and potted plants; shouldn’t we appoint a lawyer to be chiefly responsible on ethics?

5. Develop a succession plan for your law office or law department.  This entails selecting a lawyer or lawyers to step in for you for purposes of notifying and protecting your client(s) in case of your disappearance, incapacity or death (See ORPC Rule 1.3 Comment [5] and Rules 12.1, et seq. of the Rules Governing Disciplinary Proceedings). Failing to plan for the succession of your law practice or law department creates as much chaos as failing to do your personal estate planning.  Two organizational steps are paramount: incorporating this plan into your engagement agreement and relationship with current clients, and developing a plan and set of instructions for the lawyers that will step in for you to notify your clients and handle your files. 

6. Write the perfect fee agreement(s) for your practice.  We spend so much time serving others that we fail to serve ourselves, and that is a big mistake.  A fee agreement is not just about money; it’s about good client communication and may be the best defense to a bar complaint.  There are no advantages to not having a written fee agreement in every matter.

7. Create a great set of explanatory materials for your clients.  They may be in electronic, paper or audio/visual form, covering everything from office hours, to your policies for return calls and emails, to the routine matters and court procedures of your areas of law.  Like the fee agreement, this is good client communication and can be a handy document to have in the event a grievance is filed.  Plus, it saves tens of hours each year. Many grievances are filed each year after a client’s expectations have been frustrated, wrongly or rightly.  This is the best way to avoid, and defeat if necessary, ungrounded grievances.

8. Know your limitations and hire/associate with someone who has complementary skills.  “Know thyself” is especially good advice when it comes to practicing law. To be effective and successful one must be honest and know what one does well, or not.  Here are some complementary types that have historically been effective partnerships: the Big Picture trial lawyer needs the low-key super-grinder “law” guy or gal; the “enforcing” parent-type firm leader needs the “nurturer” parent-type firm leader partner; the experienced expensive lawyer needs the less experienced less expensive lawyer; the rain-maker needs the tent-maker.  This approach to complementary skills is also true of the non-attorney staff we employ.  As for ethics, everyone needs to know the Rules, including the Big Picture types, but you also need someone that will take the time to know the tedious details to make sure the whole operation is in compliance (See Resolution No. 4 above).

9. Develop and religiously use detailed checklists for repetitive legal matters.  Author and surgeon Atul Gawande’s book “The Checklist Manifesto, How to Get Things Right” chronicles story after story of how the development and fanatical use of checklists greatly reduces, if not eliminates, malpractice in all manner of procedures, including the work of professionals such as airline pilots, surgeons, and lawyers.

10. Restructure the way you hire and supervise your non-attorney staff.  ORPC Rule 5.3 requires managing lawyers to put in place “measures” giving reasonable assurance that the conduct of the staff will be compatible with the Rules.  For your protection, develop a list of specific, concrete measures in order to comply with this Rule.  Use at least the following measures: Check references, obtain written permission and an appropriate release to do a criminal background check, use a written employment agreement and job description (and include provisions related to confidentiality, honesty, prohibitions against the unauthorized practice of law, social networking guidelines and a clear provision to follow the Oklahoma Rules of Professional Conduct and report any violations.  Remember, Oklahoma is an employment “at will” state so you will want to be careful not to create additional contractual obligations to your employees unless they are desired), develop and use an employee orientation that includes education on the Oklahoma Rules of Professional Conduct, send your staff to ethics programs offered by the OBA or other providers, and include them in regular office meetings discussing best practices and compliance with the ORPC.

11. Inform your client of your duties to the justice system.  Increasingly it seems lawyers are put in an uncomfortable position created by the dishonesty of their clients.  For example, the client has lied or concealed something that the lawyer must now handle, and the results can be troubling, i.e. a perjury charge against the client.  Make certain your client is informed, both through your in-person conferences and your fee agreement and explanatory materials (see 7. above),  on the front end that you have a duty to the justice system and that the Truth trumps your obligation to them.   For example, under ORPC Rule 3.3, if the client lies to the court, you will have an obligation to correct it (in the least damning way, if possible).  Some clients seem to think we lawyers enter into a pact with them to do whatever it takes to win.  We lawyers often seem to think that we must do everything to protect the clients and can never reveal their indiscretions.  When a client lies, it puts you in a difficult position.   Make sure that the client understands that if you are forced to choose them or the justice system, the justice system wins.

12. Stay positive. Remember that the practice of law can be the most professional fun there is when done correctly. Don’t look at the Rules of Professional Conduct like the rules on the gate of a hotel swimming pool. Following them will improve your practice, product, effect and profitability.   Work with people you like and respect.  Make a living, but make a life, too. Enjoy people and things outside the Law.  Keep a proper perspective; what we do is very important but rarely is there a mistake that cannot be remedied or mitigated in some way.  Take the Law very seriously; take yourself less so. Laugh at your mistakes and the absurdities that this profession and our clients can yield. Know that by and large the system works wonderfully well, and that, in part, it is due to your intelligence, courtesy, integrity and good will.  Be grateful you are a lawyer.

This article was published in the spring 2012 issue of MyOBACLE magazine.

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