A Couple Of Not-So-Random Thoughts Regarding Your Ethical Responsibilities
By Joe Balkenbush
WHAT YOU DON'T KNOW CAN HURT YOU
When I accepted the position of Ethics Counsel at the OBA, I thought I was pretty familiar with the Oklahoma Rules of Professional Conduct (ORPC)1 and Rules Governing Disciplinary Proceedings (RGDP)2. It didn’t take very long for me to realize how much I didn’t know. The learning curve has been pretty steep. After a few months as Ethics Counsel, it has become clear to me that some of my fellow members of the bar are equally unfamiliar with these rules.
We have all heard the saying “you don’t know what you don’t know.” Unless you are intimately familiar with the ORPC and RGDP, you don’t know what you don’t know. How can you comply with the rules when you don’t know what they are or what they require? The obvious solution is to read the rules! As we all know, the ORPC and RGDP are codified in Title 5 of the Oklahoma Statutes titled “Attorneys and the State Bar.”
Since I arrived at the OBA, more than 1,000 telephone calls and/or emails have come into my office. Some callers have admittedly not read the relevant rule prior to their call. If the caller were familiar with the relevant rule and the comments following the rule, the answer to the question posed might have been clear. If not, call me! Or, if you would like some assurance that your understanding of the rule and its application is correct, call me! The OBA created the position of Ethics Counsel so attorneys can be proactive regarding ethical issues that arise and obtain a timely answer to their question. Take advantage of the available resource and contact me with any questions.
Per Oklahoma law, all contact with Ethics Counsel is privileged and confidential3. A record of each call is maintained along with the name of the inquiring attorney, the attorney’s bar number and telephone number, a brief synopsis of the facts stated and advice/guidance given. Any advice/guidance given by the Ethics Counsel is advisory in nature and is not binding upon the office of the General Counsel, the Professional Responsibility Tribunal (PRT) or the Supreme Court. Calls to Ethics Counsel can be a mitigating factor when the General Counsel, PRT or Supreme Court is determining what consequences, if any, should be imposed. My office is a resource for OBA members concerning their own conduct, not the conduct of another attorney. Also, the office of Ethics Counsel is not a resource for non OBA attorneys or members of general public.
Knowledge of the ORPC and RGDP is essential to the practice of law. These rules are just as important as an attorney’s knowledge of the substantive law of the areas in which they practice. Lack of knowledge of rules could result in an attorney’s license being suspended or worse. Few, if any, lawyers set out to violate the rules. But again, you don’t know what you don’t know. Read the rules! There are 57 of them. If an attorney reads one rule each week, the task would be completed in about a year. There’s no reason why the rules couldn’t read more quickly, but as we all know, the longest journey begins with the first step! So, take that first step and become familiar with and knowledgeable of the ORPC and RGDP.
SUCCESSION PLANNING IS IMPERATIVE
So far in 2015, one attorney or more has become incapacitated, passed away or otherwise not been able to continue the practice of law. Every month, I have received a call from a mother, father, child or friend of an attorney asking for help in closing down an attorney’s law practice. None of us want to leave our loved ones with that task. The easy solution is to prepare your succession plan. All of the necessary forms have been prepared and are available to you, free of charge. In 2014, the OBA created The Planning Ahead Guide: Attorney Transition Planning In The Event Of Death Or Incapacity.4
Please take the time to review the materials prepared for you in the planning guide. Simply appointing a Successor Attorney to deal with your clients, their files and cases will be a positive first step in planning ahead!
Although your familiarity with the ORPC and RGDP are of paramount importance, preparation of your succession plan is equally important. I urge you to follow the advice you would give any client regarding the necessity of estate planning. Likewise, it is a necessity for each and every attorney to have a succession plan. It’s not a matter of if an attorney will need to plan for such eventualities, it’s when! An attorney’s law practice is certainly part of his or her estate. Please don’t burden your loved ones with the difficult task of closing a law practice. No one plans to fail, they fail to plan!
Mr. Balkenbush is OBA Ethics Counsel. Have an ethics question? It’s a member benefit and all inquiries are confidential and priviledged. Contact Mr. Balkenbush at email@example.com or 405-416-7055; 800-522-8065.
Originally published in the Oklahoma Bar Journal -- Nov. 21, 2015 -- Volume 86, No. 30.
3. Title 5 O.S. Appendix 3A, Rule 8.3(d)
4. My.okbar.org/oba_attorney_transition_planning_guide.pdf. The link to the pdf may be found at My.okbar.org on the righthand side of the webpage after logging in and is titled Attorney Transition Planning Guide.