Attorneys have a responsibility to uphold the highest ethical standards in the practice of law - but what exactly does that entail? Aspiring to be the best possible attorney begins with an overview of the California Rules of Professional Conduct and the State Bar Act, which serve as a baseline for professional conduct. Below, we discuss essential ethical principles that attorneys should follow to comply with professional standards and maintain their clients' trust. While this article serves as a reminder of baseline standards, a more detailed look into professional responsibility can elevate an attorney's practice and ensure that clients receive the best possible representation.
The State Bar's Office of Professional Competence (OPC) staffs the Ethics Hotline and provides other preventative resources, training, and tools to assist attorneys. Ethics Hotline staff offer real-time research services to attorneys who are struggling with ethical dilemmas, and provide relevant authorities, such as the rules, case law, and advisory opinions. OPC also provides preventative education curriculum so that attorneys can learn more about the rules and authorities, as well as best practices on the most relevant topics. The goal is to help licensees make informed, ethical decisions and do more than simply avoid discipline. But the topics below, on which OPC provides best practices as part of its training curriculum, are also those that generate the most disciplinary complaints.
Competence and Diligence
The foundation of any law practice is competence and diligence. As an attorney, you must remain competent to practice law while diligently representing your client's interest. (California Rules of Professional Conduct, rules 1.1 and 1.3.) Competency includes keeping abreast of changes in the law and technology and taking care of yourself to ensure that you have the physical, mental, and emotional ability reasonably that are necessary to perform legal services. Diligence is the obligation to act with commitment and dedication to your clients' interests. It includes following through on commitments, meeting deadlines, and not neglecting, disregarding, or unduly delaying any client's legal matter.
Best practices for maintaining competence and diligence include establishing and maintaining law office management procedures. This likely includes having clear intake/conflicts check procedures, a file-maintenance system, a calendaring system, a billing system, and a protocol in place to answer and return phone calls. Competence and diligence also include ensuring that you stay up to date on the law through continuing legal education (MCLE) in your area of practice, as well as local court procedures. Local bar associations offer MCLE and connections to court resources and are also a great source to find mentors and other practitioners who may be willing to share other practice tips with you. The State Bar's website also has resources on law practice management that are regularly updated.
Lack of communication is one of the main sources of disciplinary complaints. Setting up clear expectations and maintaining boundaries while communicating all necessary information is much easier said than done but can be achieved through consistency. Effective communication with clients is critical in building trust and maintaining strong relationships. Some key requirements of the duty to communicate include informing your client of significant developments in your case, such as receipt of funds or property, or settlement offers and proposed plea bargains. (Rules 1.4, 1.4.1, 1.15.) Also, when a client has questions about their case, you must respond.
Best practices include setting expectations for communication at the beginning of the relationship and reinforcing them through the engagement letter or a fee agreement. Establish good communication habits early in your practice. You may also want to send your client regular case updates via monthly letters or along with the monthly billing invoices. Another best practice is making sure to document your communication efforts. After you talk to a client, send a follow-up email or letter that restates the discussion and any resulting expectations.
Now let's talk about getting paid. A fee agreement is a contract for legal services, fees, and costs, but it can also serve to structure the attorney-client relationship. The crucial aspects of a fee agreement include defining who the client is, the services to be provided, and the responsibilities of the parties. Fee agreements are governed by Business and Professions code sections 6147 and 6148. Section 6147 applies to contingency fee agreements; section 6148 applies to hourly and other non-contingent fee agreements. With limited exceptions, all fee agreements must be in writing. Failure to comply with these requirements renders the fee agreement voidable at the option of the client and limits you to being paid for reasonable value of your services. Rule 1.5 also applies to fees and should be carefully reviewed when entering into a fee agreement.
Best practices include providing clear and consistent communication about billing. Bill regularly, and touch base with the client either before or immediately after billing to head off any fee disputes. Sample fee agreements can be found on the State Bar's website.
Safeguarding Client Funds
Mishandling of client funds is one of the most serious breaches of professional responsibility that can result in discipline. Discipline may be warranted even if the mismanagement of funds was neither fraudulent nor willful. Rule 1.15 requires you as the attorney to keep client funds separate from your own funds and deposited in an account clearly labeled "trust account" or with a similar designation. Absent specific circumstances and client consent, that account must be maintained in California. With the exception of funds reasonably sufficient to pay bank charges, an attorney's funds must never be deposited into a client trust account. Depending on how much money you are holding for a client and how long you are holding it for, client funds must be held in either a single, interest-bearing account for an individual client, or a pooled account (IOLTA), whose interest is deposited with the State Bar to fund access to civil justice for indigent persons. (Bus. & Prof. Code, §§ 6210 et seq.)
Rule 1.15 also provides recordkeeping standards and other responsibilities, such as when to notify clients of funds received and when attorneys can deposit funds in an operating account as opposed to the client trust account. A new requirement effective Jan. 1, 2023, mandates that if you receive money, you must, absent good cause, promptly notify the client or other person entitled to the funds within 14 days and provide undisputed funds to your client, absent good cause, within 45 days. Importantly, you must never withdraw funds that the client disputes.
Best practices in the area include keeping an audit trail of all money that touches your client trust account, staying on top of finances, and reconciling your accounts monthly. As part of your duties regarding funds and to communicate, send billing statements in a timely fashion, and if fees go beyond what the client expected, promptly discuss the situation with the client so the client can decide how to proceed. The State Bar has a Client Trust Accounting Handbook that includes everything you need to know about proper trust account management. It's available on the website for free and is electronically searchable.
Ending the Attorney-Client Relationship
It is always best to end things on a high note, including the attorney-client relationship. But no matter how it ends, understanding the duties applicable at the end of the attorney-client relationship is important. (Rule 1.16.)
You must give due notice that the relationship has ended; take adequate steps to preserve a client's rights; avoid causing prejudice to the client; promptly refund any unearned fees or costs that the client paid in advance; and ensure that the client gets their file, including all documents or property previously given to the attorney or acquired during the representation. The duty to release the client file is mandatory, even if you copied the client on all communications and filings throughout the representation. For certain cases, such as a criminal case, an attorney may also have special statutory
obligations for client file release and retention. Claims that a file has not been delivered as requested are one of the most common bases for disciplinary complaints.
Best practices include ensuring your client receives written notice that the
relationship has ended, along with the client file and final disposition of the matter. If the relationship ends prior to final disposition of the matter, make sure you take all steps necessary to preserve any client rights and prevent any prejudice to the client's case.
For attorneys, navigating complex ethical dilemmas is a crucial part of the job. In the coming months, OPC will enhance our preventative education with microlearning, self-assessments, and updated resources. Microlearning will break down some key topics on professional responsibility into short, accessible pieces, such as this article. There are numerous resources available on the State Bar's ethics webpage. We hope that this article and other State Bar resources reinforce and remind you of the importance of high ethical standards and attorney best practices.
For reprint rights or to order a copy of your photo:
Direct dial: 949-702-5390
Send a letter to the editor: