A Year-End Ethics Audit
By Amber Hollister
This time of year, lawyers across Oregon are busy juggling work and family commitments — reading the Oregon eCourt guide, tending to the needs of clients, attending holiday parties and visiting with family. Understandably, honing your ethics know-how may not make it onto your seasonal to-do list. But traditionally, the year’s end is a time to step back and take account. Why not take a moment to see how you measure up?
This pop quiz is designed to give you a quick snapshot of your level of ethics compliance and help you flag areas for further contemplation. What ethics rules do you know well? What rules should you review in the New Year?
Pull out your pen, dust off your rules and answer the questions below. Then turn to the answer key for the correct answers and a discussion of the issues.
1. You were recently retained to represent Samuel in a bitter custody dispute. Samuel paid a substantial retainer, which you deposited in your trust account. You are in the process of e-filing a contempt motion in circuit court and realize you need to pay a filing fee. How should you pay the fee?
A.Transfer the amount of the filing fee from your trust account to your business account and then pay for the filing fee with a firm credit card.
B. Walk to the courthouse with a check.
C. Pay the fee with a firm credit card, then bill Samuel for the expense and reimburse yourself from your lawyer trust account.
D. Let Samuel take care of it; he is better with computers than you.
2. At 11:58 p.m. after a long hard day at work, you log onto the eCourt system to file a notice of appeal in a civil matter. The next day, you check the filing and realize that you filed the wrong document and the deadline has passed. Instead of the notice of appeal, you uploaded the first chapter of your legal thriller. What should you do?
A. Ask the clerk to review the chapter and provide a critique. Then wait a few weeks to tell your client Sonia that her appeal was denied.
B. Call the Professional Liability Fund, inform your client Sonia of the mistake and assess whether you have a self-interest conflict in continuing the representation.
C. Call your client Sonia and offer to represent her on another matter for free, in return for her agreement not to file a malpractice case against you.
3. A birth mother and prospective adoptive parents come to your office for a consultation. They are all very close and excited about their plan for an open adoption. They have jointly decided to name the new baby Elena and want you to represent them. Can you do so?
A. Yes, but only if you obtain the birth mother and adoptive parents’ informed consent.
B. Yes, but only after you explain that if they have a falling out about anything, including their chosen name, you will have to withdraw.
C. No, because you have a conflict of interest.
D. Yes, but only with the permission of the court.
4. You are representing a corporation in a contractual dispute with another company. On Friday afternoon, your client directs you to make a settlement offer to the opposing party. For business reasons, the client explains it is imperative that she settle the matter before Monday. You know your opposing counsel, Antonin, is duck hunting with his grandchildren and unavailable by phone. What should you do?
A. Call the CEO of the opposing party, Stephen and make the offer.
B. Wait until Antonin returns to the office and present the settlement offer.
C. Call Antonin’s law firm and ask to speak with another lawyer to present the settlement offer.
D. Direct your client to call the CEO of the opposing party, Stephen, to make the offer. Provide your client with a settlement agreement containing her desired terms and advise her how to close the deal.
5. You recently withdrew from representing Anthony in a complex civil matter. You receive an email from Anthony asking you to send his file to his new attorney, John. Anthony has an outstanding bill. Do you have to provide a copy?
A. Yes, but you do not need to copy your informal notes about the case or internal firm emails.
B. No, as long as you previously gave Anthony copies of all pleadings and correspondence.
C. No, because Anthony has failed to pay his bill in full and he can access all of the pleadings through e-Courts.
D. None of the above.
6. You are about to conduct voir dire on behalf of the defendant in a criminal trial, when the judge calls a brief recess. You pull out your tablet and do a quick social media search on the potential jurors. You quickly find a Facebook page that seems to belong to one potential juror who uses the nickname Notorious R.B.G. You are curious to learn more. What should you do?
A. Review the public portions of the page and take notes.
B. Ask to “friend” the potential juror so you can make a few controversial posts and learn more about her background and beliefs.
C. Ask your legal assistant to “friend” the potential juror so you can make a few controversial posts and learn more about her background and beliefs.
7. Clarence hired you to complete a real estate deal. He paid you a $15,000 fee that was designated as “earned upon receipt.” An unexpected conflict arises and you are forced to withdraw. Clarence directs you to send him a refund. What do you do?
A. Refuse to provide a refund because you already performed a substantial part of the work.
B. Refuse to provide a refund because you’ve worked more than 50 hours on the matter and your regular hourly rate is $300 per hour.
C. Offer to refund part of the fee that is proportional to the amount of work you performed.
1. Answer: C. Pay the fee with a firm credit card, then bill Samuel for the expense and reimburse yourself from your lawyer trust account. Attorneys are allowed to advance eCourt filing fees under Rule 1.8(e)(1) by paying them with a firm credit card. When an attorney uses a firm credit card to pay an eCourt filing fee, the attorney can post the filing fee to the client’s account as soon as the filing is made and bill the client according to the terms of the fee agreement. There is no need to wait for the firm’s credit card statement to arrive before billing the client. Attorneys must not comingle their own funds with the funds of clients or other persons. RPC 1.15-1(a); see OSB Formal Ethics Op 2005-172. Currently, lawyers must have a payment account to use File & Serve. The filer’s credit or debit card is authorized for statutory filing fees at the time the filing is submitted
2. Answer: B. Call the Professional Liability Fund, inform your client Sonia of the mistake and assess whether you have a self-interest conflict in continuing the representation.
If you are concerned you have committed malpractice, it is often a good idea to consult with the PLF. You have a duty to communicate with the client truthfully about the status of the case, even if you are relaying bad news. RPC 1.4(a); RPC 8.4(a)(3); see e.g. In re Kolstoe, 20 DB Rptr 28 (2006). You may have a self-interest conflict based on your likely malpractice. Self-interest conflicts can be hard to identify because they require assessing both your own subjective personal interests and whether such interests might reasonably limit your ability to represent your client. See RPC 1.7(a)(2); OSB Formal Ethics Op No 2005-61 and 2005-182; In re Knappenberger, 337 Or 15 (2004). Even if you determine a self-conflict exists, you may be able to continue representation with informed consent from the client, confirmed in writing, as long as you can provide diligent and competent representation going forward. See RPC 1.7(b) and 1.0(g). Under no circumstances should you ask the client to sign an agreement agreeing to settle a claim or potential claim for malpractice liability with an unrepresented client unless that client is advised in writing of the desirability of settling and is given a reasonable opportunity to seek the advice of independent legal counsel on the agreement. RPC 1.8(h)(2).
3. Answer: C. No, because you have a conflict of interest. Although Elena is a lovely name, lawyers are prohibited from certain types of joint representations, such as representing birth and adoptive parents in an adoption. RPC 1.7; OSB Formal Ethics Op No 2005-28 (representation of birth parents and adopting couple); see also OSB Formal Ethics Op no 2005-82 (representing co-defendants in a criminal matter). OSB Formal Ethics Op No 2005-28 concludes that informed consent cannot resolve the conflict described because the lawyer would be obligated to advocate for certain rights on behalf of the birth parents that she would have a duty to oppose on behalf of the adoptive parents and vice versa.
4. Answer: C. Call Antonin’s law firm and ask to speak with another lawyer to present the settlement offer. Lawyers are prohibited from communicating with represented parties on the subject matter of the representation. RPC 4.2. When dealing with corporate entities, RPC 4.2 applies to prohibit direct communication with current corporate management, corporate officers and directors and current employees whose conduct is at issue. OSB Formal Ethics Op No 2005-80. Because Stephen, the CEO, is part of corporate management, you cannot contact him directly to discuss settlement. Lawyers are also prohibited from directing their clients to communicate with unrepresented parties on subjects that they would be prohibited from discussing. OSB Formal Ethics Op No. 2005-6. While it would not violate RPC 4.2 to wait until Antonin returns to make the offer, the client has expressed that she needs this matter resolved be Monday.
5. Answer: D. None of the Above. When withdrawing from representing a client, attorneys have a duty to promptly return all property and papers to which the client is entitled in order to protect the client’s interests. RPC 1.16(d); 1.15-1(d). For this reason, absent valid attorney liens, attorneys should give the client a full copy of the file and return all client originals. See OSB Formal Ethics Op No 2005-125. A full copy of the file is defined broadly to include all papers and property that the client provided to the lawyer; litigation materials, including pleadings, memoranda and discovery materials; all correspondence including emails; all items that the lawyer has obtained from others, including expert opinions, medical or business records and witness statements; and lawyer notes or internal memoranda that may constitute attorney-work product. Id. There is no duty to return documents the client is not entitled to receive, however, such as documents subject to a protective order or documents that were prepared for other clients and contain client confidences. Id.
With one important caveat, attorneys who have a valid possessory lien over client property may refuse to provide a copy of the file until their bill is paid. ORS 87.430. If the client does not have sufficient resources to pay the lawyer and surrender of the file is necessary to avoid foreseeable prejudice to the client, the attorney must provide a copy of the file upon payment of whatever amount the client can afford to pay. OSB Formal Ethics Op No 2005-90. For information about who pays for the copy of the file, see OSB Formal Ethics Op No 2005-125.
6. Answer: A. Review the public portions of the page and take notes. Lawyers are prohibited from having ex parte contact on the merits of a cause with prospective jurors or directing others to have contact on their behalf. RPC 3.5(b); 8.4(a)(1). Merely reviewing a public Facebook page is not considered contacting a juror. OSB Formal Ethics Op No 2013-189.
7. Answer: C. Offer to refund part of the fee that is proportional to the amount of work you performed. When a lawyer has done part, but not all, of the work agreed upon in a fixed fee agreement, calculating a refund due may be complicated. Generally speaking, a lawyer must return the amount of a fixed fee that is proportionate to the amount of work not completed. See In re Okai, 23 DB Rptr 73 (2009); In re Vance, 20 DB Rptr 92 (2006). For instance, if a lawyer finishes half of the agreed upon work, half of the fee must be returned to the client. A lawyer may not simply calculate the refund required by subtracting the amount of money the lawyer would have charged for the work, had the lawyer charged an hourly rate. In re Balocca, 342 Or 279 (2007). Such an hourly rate computation in the fixed fee context would “deny (the client) the benefit of the flat-fee arrangement.” Id. at 292.
ABOUT THE AUTHOR
Amber Hollister is deputy general counsel for the Oregon State Bar. She can be reached at (503) 620-0222, or toll-free in Oregon at (800) 452-8260, ext. 312, or by email at email@example.com.
© 2014 Amber Hollister