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What Cutting Ethical Corners Says About You As A Lawyer

by Carolyn Elefant on March 15, 2011 · 5 comments

in Ethics & Malpractice Issues, Mistakes/What NOT To Do

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Ah, those silly bar ethics rules. Like the ones that prohibit lawyers from dubbing their practice “Smith & Associates” when the firm is comprised of just one person. Recall, that Sonya Sotomayor ran afoul of these rules and it came back to bite her during her confirmation hearings.

As it turned out, Sotomayor’s ethics lapse was insignificant in the context of her otherwise pristine record. But more often than not, cutting ethics corners may be indicative of larger ethical deficiencies. For example, Mark Bennett has been reporting on one “and associates” solo at Defending People who continues to dig a deeper hole for his client with prejudicial comments in the media, and is playing fast and loose with conflict-of-interest rules by representing three co-defendants in a gang-rape case.  Another “and associates” lawyer featured at Brian Tannebaum’s My Law License was also suspended – not so merely because a solo lawyer purported to be a law firm of three attorneys, but also because he was helping himself to client trust accounts.

I don’t know whether these lawyers started small by testing less significant ethics boundaries and just continued to see how far they could push before they got caught. More likely, they never understood or took their ethics obligations seriously and neither realized nor cared how actions like stealing from a trust account or violating the duty of undivided loyalty violate their professional responsibilities.

If you don’t like a silly disciplinary rule, then blog about how stupid it is or try to change it. But don’t ever violate it — because once you do, who knows what else you might do?

  • http://www.ethicsmaven.com Eric Cooperstein

    Carolyn, I never thought I’d see such an anti-solo post from you! Can it really be cutting a corner if no one says where the corner is or it’s covered in snow? I don’t see any connection between a meaningless application of an advertising rule and a general disdain for the rules of professional conduct. Most lawyers who violate an ethics rule do it because they were rushed, overwhelmed, frustrated, angry, confused, or experiencing any one of a dozen other emotions or pressures. The repeat offenders usually have deeper issues than just a callous disregard for the rules. Except for the relatively few lawyers who steal a little, get away with it, and steal a little more, I see very few lawyers on a slippery slope from an advertising violation to worse ethics violations, just like parking tickets don’t typically lead to armed robbery.

  • Carolyn Elefant

    I did not mean to be anti-solo (though sadly these two violators were solos). It was just that the proximity of these two posts about poor conduct, and the coincidence that each lawyer had cut corners on the “and associates” rule (which I don’t find entirely unreasonable if you’re only one person, though it does become murky when a firm employs contract lawyers and such). It is good to know that there isn’t a connection between advertising violations and worse conduct.

  • http://www.ethicsalarms.com Jack Marshall

    “Most lawyers who violate an ethics rule do it because they were rushed, overwhelmed, frustrated, angry, confused, or experiencing any one of a dozen other emotions or pressures.” Absolutely, which is why taking care of one’s mental, physical, emotional and spiritual health is probably the single most important thing a lawyer can do to avoid breaching ethical standards.
    But Carolyn’s point is valid, and it isn’t “the slippery slope.” Shrugging off seemingly small ethics rules often underlies a general willingness to ignore rules when it’s convenient or profitable. Adding a bogus “and Associates” won’t make you break the next rule, but it may show that you are ready to.

  • Mark Bennett

    I don’t see any necessary connection between a general disdain for the rules of professional conduct and a lawyer’s ethics. In fact, I think a slavish adherence to the disciplinary rules indicates a lawyer who is unable to make ethical decisions on his own, and is therefore more likely to err when the rules provide no clear guidance.

    I have a general disdain for the rules of professional conduct, but I follow them anyway because it generally happens that doing so coincides with behaving ethically, or at least ethically neutrally. If it were more ethical to violate a rule than to follow it, I would violate the rule at my own hazard. (Bennett’s Law of Rules dictates that one may ethically choose to violate the rules, but only if one is prepared to accept the punishment.)

    The rules are, after all, law and not ethics; a good number of them are regulatory or prophylactic and not ethical. The rule against misrepresenting oneself (as a multiple-lawyer firm, say—or an ethics expert—when one isn’t) is not, however, one of those regulatory or prophylactic rules. Representing oneself as “and associates” when one has no associates is a lie (if a firm employs contract lawyers, are they “associates”?). Worse, it’s fraud. Worse yet, it’s fraud on potential clients.

    That isn’t at the top of a slippery slope; it’s near the bottom.

  • http://www.ethicsalarms.com Jack Marshall

    Bennett’s Law of Rules finds itself into my work a lot—It’s an important concept, and I’m glad to finally know what to call it.

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