Ethical lapses on the part of lawyers are often due to mistake, rather than known wrongdoing. The problem is not intention, but lack of attention. Taking the time to pause and ask yourself the following ethical questions before embarking on a course of action will help maintain your ethical obligations, your quality of representation, and the benefit you provide to the public.
1.Are you competent in the relevant legal areas?
“Don’t dabble” is an oft-repeated mantra. Lawyers may sometimes feel pressure to expand the scope of their representation to encompass tangential or additional matters brought forward by a client. Sometimes the best legal advice you can give to a client is a referral to another lawyer with the necessary experience.
2. Who is your client?
Lawyers can sometimes find themselves in a situation where they are, perhaps inadvertently, representing multiple parties with potentially adverse interests. Be careful to specify and remind yourself who you have agreed to represent, and then ensure that the instructions you take and the advice you give are from and to that person.
3. What are your client’s intentions?
Fraudsters often use inattentive lawyers as unknowing instruments and accomplices for unethical and illegal conduct. Willful blindness or unreasonable ignorance in such circumstances will not prevent a potential finding of liability for malpractice, or worse. Take the time to confirm your client is not leading everyone, including you, down the garden path.
4. What are the parameters of your retainer?
Lawyers can run into trouble when they act without client instructions or fail to act in accordance with instructions. This can leave you torn between bad choices if time-sensitive developments occur and your client is unavailable to instruct. Ensure you set out at the beginning of the retainer the exact scope of your representation, the circumstances in which you will seek instructions, and the ways in which you will obtain those instructions.
5. Are you maintaining confidentiality?
An inadvertent failure to keep client confidentiality can be a serious breach of a lawyer’s ethical obligations. For example, border crossing with electronic devices containing privileged information can expose those devices to search by Canadian or foreign officials. Only bring “clean” devices across a border (without any confidential information on them). In the alternative, encrypting the contents of your devices or segregating privileged material into clearly marked folders or accounts will still provide some safeguards for your ethical obligations.
Shawn Erker (@ShawnErker) is Legal Writer & Content Manager at LAWPRO.