|Ethics & Professional Liability|
The defensive practice of law rests on a disciplined approach that begins with disclosure, discussion, and documentation. Avoiding conflicts of interest, legal malpractice or attorney discipline is part of the thoughtful process that is part paranoia and part prevention.
Three independent principles govern a lawyer's assistance to a former client in mitigating damages caused by the lawyer's conduct: (1) the duty of loyalty, (2) the standard of care, and (3) reciprocity. While generally not required, helping a former client to mitigate damages resulting from the lawyer's conduct may be in the lawyer's best interest, especially to avoid potential legal malpractice claims.
New lawyers need to be know the rules that govern their newly acquired profession and conduct themselves as though their professional lives depend on it, because in many ways they do.
Few lawyers appreciate the hazards they face when they obtain their opponents' attorney-client or work product privileged information. The risk of disqualification can be minimized if the problem is understood, and a strategy employed to properly manage the information.
Many law firms associate with lawyers that are neither employees nor owners, but with whom the law firms share work and clients, and for whom the law firms must manage unique ethical issues.
Ethical rules should not be applied mechanically in class action litigation. Similarly in derivative litigation, issues of identifying the client and understanding conflicts and how to deal with them require special attention.
Ethical rules even apply to entertainment lawyers, who usually perform numerous roles for their clients. As a result, it is important for them be mindful of the requirements so that a failure to comply or take appropriate precautions does not interfere with the art of the deal.
Lawyers are increasingly the targets of sophisticated and well concealed internet scams that must be recognized and managed to avoid negative consequences ranging from lost income to bar discipline.
Lawyers are required to keep and maintain their clients’ confidences. That obligation is not limited to attorney-client privileged information.
A lawyer representing a California Limited Liability Company ("LLC") faces nuanced challenges in balancing the interests of LLCs, and their managers and members. Understanding the context of the representation and applying defensive practice techniques aids in avoiding potential legal malpractice, including conflicts of interest.
The California Rules of Professional Conduct (the "Rules") form part of the framework governing ethical restraints on lawyers. The Rules are unique, and sometimes difficult to navigate, but nonetheless important guideposts that should be observed and respected.
The Informed Consent Doctrine governing doctor patient waivers has not been adopted in the similar context between lawyer and client. However, lessons can be learned from the medical community and lawyers can protect themselves and their clients by ensuring that the client is always fully informed about and consents to substantive decisions.
Lawyers employing private investigators face ethical challenges and risks. Recent events require lawyers to consider their investigators as their agents or rue the consequences.
Lawyers practicing in bankruptcy courts are burdened with additional rules governing their ethical behavior and must know the requirements which sometimes contradict ethics rules outside of the bankruptcy context.