By: Special to The Daily Record , Katherine T. McCarley //July 18, 2022
By: Special to The Daily Record , Katherine T. McCarley //July 18, 2022//
All lawyers are bound by the ethical rules of the jurisdiction in which they practice and practicing ethically is an integral part of what it means to be a good attorney. One thing I learned about ethics after law school is that ethics in practice can be a bit different than ethics in the classroom. In a controlled setting, learning the limits and boundaries of client advocacy, communication, and negotiation is safe and, depending on your professor, fun. Ethics in real time, on the other hand, is serious business.
As a newly admitted civil litigator, I have found it best to develop processes for all aspects of my job, especially client management. I commit myself to fully advocating for my clients, and always in an ethical manner. So let’s take a moment to explore a few ethical client management techniques, and track those techniques against New York State’s Rules of Professional Conduct.
Techniques. Yes, an attorney should be able to identify his or her client. However, when an organizational client has multiple representatives or agents, the answer may not be so simple. Make sure to understand the who, what, when, where, and why of the client. For instance, you need to understand, as soon as possible, whether the client is cost conscious, has a personal or emotional connection to the matter, or can be flexible with the means used to accomplish the ends. This will help you understand the client’s goals of the representation, which will make client management easier. It will also enable you to develop creative and practical solutions.
Rule of Professional Conduct to Keep in Mind: Rule 1.13
Rule 1.13(a) requires an attorney who represents an organization and deals with the organization’s representatives, agents, or employees, some of whom may have differing interests, to explain that he or she represents the company, not any of its constituents. Rule 1.13(b) requires an attorney to act within the best interest of his or her organizational client when that lawyer knows a person associated with the organization acted or intends to act in a manner that would result in either a violation of a legal obligation to the organization or a violation of a legal obligation that could be imputed to the organization, and such violation is likely to substantially injure the organization.
Techniques. Due diligence and promptness are key to successfully managing a client’s goals and expectations. When assessing either the viability of a claim or the extent of a client’s liability, it is critical to do your due diligence — review all of the relevant documents, and not just the documents the client thinks will support its claims or defenses. Knowing what the documents say before commencing a lawsuit or preparing an answer to a complaint, and before having to gather documents responsive to the opposing party’s discovery requests, gives you ample time to analyze your client’s position before any representations of law or fact are conveyed to a third party or a court of law. Being prompt in requesting documents will help you avoid having to make corrections to previously submitted statements of law or fact and assures that prompt and accurate responses can be made to valid discovery demands. Remember, there are many reasons why a client’s (or a client’s employee’s) version of the facts may not be entirely accurate, and, more importantly, capable of being proved at trial through admissible evidence. Emotion, wishful thinking, an instinct for self-preservation, and the simple passage of time, to name just a few factors, could cause the versions of the relevant events offered by the client’s witnesses to be somewhat inaccurate or contrary to what the documentary evidence shows. So it is always best to trust but verify.
Rules of Professional Conduct to Keep in Mind: Rule 1.3, Rule 3.3, and Rule 4.1
Rule 1.3(a) requires an attorney to act with reasonable diligence and promptness in representing a client. Rule 3.3(a) states that an attorney may not knowingly make a false statement of fact or law to a court or fail to correct a false statement of material fact or law previously made to a court by an attorney. Similarly, Rule 4.1 states that an attorney must not knowingly make a false statement of fact or law while representing a client.
Techniques. At the outset of the representation, make sure you and the client are clear on the scope of the representation. The scope should be defined in a retainer agreement, making sure to be clear about what tasks are and are not included and what events will bring about the end of your representation. Exercise caution and err on the side of more, and not less, explanation, and notify the client after each step of a proposed plan of action is completed. For example, if you speak with opposing counsel, file papers with the court, or strategize with other attorneys within the firm, tell the client. You can limit updates based on the client’s preference, providing updates on a scheduled basis. For example, if it is not reasonable to update the client as soon as something happens in a matter, it may be reasonable to provide a weekly update, covering all actions taken on the file since the last update. Keeping the client informed in writing throughout the process ensures the client is knowledgeable about and has its own record of the matter. Be reasonable when communicating. Think to yourself, “If you were the client, would you want to know ‘X’ happened?”
Rule of Professional Conduct to Keep in Mind: Rule 1.10.
Rule 1.10(a) requires an attorney to: communicate with the client promptly regarding settlement and pleas; consult with clients about how objectives are to be reached; inform the client of any limitations attached to the attorney’s ability to reach those objectives; keep the client informed about the status of its matter; and comply with a client’s reasonable requests for information. Rule 1.10(b) requires an attorney to explain a matter to the extent necessary for the client to make informed decisions about representation.
Zealously representing your clients while also keeping those clients informed of your ethical obligations can sometimes be a challenge, especially if you are new to the practice of law. However, using techniques like those offered above can help to make sure you are representing your clients ethically.
Katherine T. McCarley is an Associate in Underberg & Kessler LLP’s Health Care, Litigation, Labor & Employment Practice Groups.