Ethical Lawyers, Really?

Originally published in First Draft, October 2020

You’ve heard all the lawyer jokes. What’s black and brown and looks good on a lawyer? A Doberman.

What’s the difference between a good lawyer and a bad lawyer? A bad lawyer can let a case drag out for several years. A good lawyer can make it last even longer.

My personal favorite is the one Robin Williams slaughtered in Hook: Scientists now use lawyers instead of mice for experiments. There are two reasons. First, the lab assistants don’t get attached to them. And, second, there are some things even a rat wouldn’t do.

But did you know that there are actually written ethical rules for the practice of law? The American Bar Association adopted a model code which in turn can be used as a pattern, to be embellished or edited, for each state’s ethical rules. You can find the model code here: https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/model_rules_of_professional_conduct_table_of_contents/

I was looking something up in the current code the other day when it occurred to me that you, crime fiction authors, may be interested in the rules to inform you on how your lawyer character, good guy or bad guy, could get into trouble. Here are some examples of how an attorney could run afoul of the rules:

Taking a case when she knows nothing about the law or procedure.

Ethical Rule 1.1 states that a lawyer shall provide competent representation, defined as “the legal knowledge, skill, thoroughness and preparation reasonably necessary.” It’s a conundrum for baby lawyers, who although they have a legal education and have passed the bar, they couldn’t find the courthouse much less know how to get a case filed and moved through the system. It also becomes a problem when an experienced attorney takes a case in an area in which he’s never practiced. The fix is to find another attorney who is competent in that kind of case and pick his or her brains, then work like the dickens to learn everything you need to know.

Failing to keep the client informed.

Ethical Rule 1.4 mandates that a lawyer shall promptly inform the client of any decision or circumstance with respect to which the client’s informed consent is required, reasonably consult with the client about means by which the client’s objectives are to be accomplished, keep the client reasonably informed about the status of the matter, promptly comply with reasonable requests for information, and consult with the client about limitations on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law. Rule 1.4(a). Also, the lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Rule 1.4(b). This rule is a mine field.

In olden days before e-mail, it meant a telephone call, but a letter was always better so the attorney could document that the information was communicated. Nowadays, its easy to shoot an email to a client every time something happens. Here are some examples when attorneys have gotten into trouble:

A settlement offer comes in. If the attorney rejects it without consulting with the client, that’s a violation of his ethical obligation. If the attorney fails to convey the settlement offer, that’s an ethical violation. Accepting a settlement offer without the client’s agreement. Very, very bad. The attorney is treading on disbarment territory.

Not giving the client status reports, especially when they are requested. If a client calls or emails for a status, its best to drop everything and write a letter or email.

If a client asks a question the attorney cannot answer, he should not answer it.

This comes up when the client hired the attorney for one kind of case, say a personal injury, and then starts asking questions about divorce. Or if the client hired the attorney for a case in California and then asks the attorney for advise about law in Florida. If the attorney is not license in Florida, he cannot advise the client about Florida law.

Conflict of Interest.

Ethical Rules 1.7-1.9. An attorney cannot represent a client against another client or former client. For instance, in a real life case, Attorney A was hired to represent a man in a criminal driving while intoxicated prosecution resulting from a motor vehicle accident. The defendant was convicted and sentenced. Then Attorney A represented a passenger in the defendant’s vehicle who was injured in the accident and filed a personal injury suit against his former client. Very bad. Ended in a disbarment.

Or say an insurance company defense attorney representing the defendant accuses him of colluding with the plaintiff in order to bilk the insurance company. The attorney cannot represent the insurance company and the defendant at the same time. That’s a conflict of interest. Ethically, the attorney should withdraw.

In the Lincoln Lawyer series, the hero Mick Haller spends a lot of time and energy worrying about how not to run afoul of the bar association, which is something that most attorneys think about from time to time. He’s most worried about having clean trust accounts. The client’s retainer is deposited in a trust account from which Haller can make withdrawals after he has billed for his services. Say he took in a $10,000 retainer and is billing at $200 per hour (I made that up). If he performed 5.0 hours of services, he has earned $1,000 and he can withdraw $1,000 from the account, not a penny more. If he takes more than he has earned, then he has just embezzled his client and that’s very, very bad. Ethical Rule 1.15.

I hope these rules and examples give you inspiration for crafting stories in which your lawyer character does, or does not, make an effort to practice ethical law. If you watch or read legal drama and thrillers, you will see that much of the time, attorney characters are dancing on the knife’s edge of ethics.

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Keenan Powell

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Keenan Powell is the Agatha, Lefty, and Silver Falchion nominated author of the Maeve Malloy Mystery series, Deadly Solution, Hemlock Needle, Hell and High Water.

While still in high school, she was one of the illustrators of the original Dungeons and Dragons. Art seemed an impractical pursuit – not an heiress, wouldn’t marry well, hated teaching – so she went to law school instead. When not writing or practicing law, Keenan can be found oil painting, studying the Irish language, or hanging out with her friends at mystery conventions.

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