by Gail A. Stafford
In spite of what many declare to be cries of the so-called declining civility in the practice of law, for the most part, lawyers are honorable professionals. Nevertheless, as human actors, lawyers sometimes are negligent, ignorant or deliberately defiant of the rules that govern their behavior. The question becomes how the legal system can assist lawyers in improving their professional conduct.
There are basically two areas of violation of rules of professional conduct: (1) unintentional violations, and (2) deliberate violations. A subcategory of the unintentional violation category is negligent behavior. The lawyer knows the rule but nevertheless fails to pay adequate attention and inadvertently breaks the rule. The second type of unintentional violation is due to ignorance. The lawyer does not know that a rule outlaws the behavior at issue. Deliberate violations fall into three subcategories. First, cases that arise from a flawed law. In these cases, the lawyer refuses to obey the law because the law itself is outdated or otherwise does not reflect reality. The second and most common type of intentional rule violation is due to selfish reasons of the lawyer. The third subcategory is when the lawyer defies the rule for noble reasons. The lawyer knowingly breaks the rule in order to achieve a higher good. Part One of this article will focus on unintentional violations. Part Two (to be published in next month’s professionalism column) will focus on intentional violations.
Consider first negligent unintentional violations. These usually deal with the lawyer’s failure to adequately observe simple rules. Examples are rules that require a lawyer to represent her client “competently,” to exercise “reasonable diligence” in representing her client or to keep her client “reasonably informed.” Lawyers violate these rules when they procrastinate. They let deadlines slip. They forget about client meetings or other obligations. They do not return client calls.
Why do lawyers violate such simple rules? Some of these violations, especially not returning clients’ calls, may be deliberate, but most seem to be negligent. The lawyer has other things on her mind. Many lawyers find themselves negligently violating standards of conduct because they have let their workload exceed reasonable limits. They try to do too many things and please too many people at one time. They lose control of their case files or client matters.
How can negligent conduct be regulated to assure it does not continue? The lawyer does not intend to behave negligently, so the prospect of punishment for negligence is remote and rarely impacts behavior.
Targeting the root of common causes of negligence can be an effective solution to some forms of lawyer negligence. The fight against drugs is a good illustration. After the public realized that many societal problems were caused by drugs, punishments were enhanced for drug use, the public was educated on the dangers of drugs and police were trained to identify drug users by their erratic behavior. As a result, drug use and its resultant societal problems have decreased.
One way to alleviate the problem may be through education. A lawyer, particularly a new lawyer, may not fully appreciate her potential for negligence. She might benefit from tips on the reality of practice, such as: (1) what reasonable and unreasonable workloads are, (2) a calendar system and/or (3) a tickler system that alerts her to upcoming deadlines. She also might catch and correct her negligence if she knows to watch for certain early warning signs of negligence, such as when she finds herself avoiding a client’s or supervising attorney’s calls or telling “little white lies” about her progress on their matters. Corrective measures and education can avoid some forms of lawyer negligence.
The second category of unintended violation, those resulting from ignorance, may happen because the lawyer received an inadequate education in the first place, or forgot what she once knew. The lawyer may be temporarily in a different jurisdiction from that in which she was trained and licensed, or the law in her own state may have changed since she was first licensed.
For example, even experts in legal ethics likely cannot recall every provision of and/or local variation on complex rules such as ABA Model Rule of Professional Conduct 1.8 (Model Rule). While it is true that, most lawyers perceive their duty of confidentiality, the exceptions are confusing. Some exceptions give the lawyer discretion to decide whether to breach confidentiality while others require the lawyer to affirmatively act to breach confidentiality. Moreover, the list of exceptions is ever changing.
Education does not eliminate lawyer ignorance. This is true because human beings simply have a limit on what they can learn and retain. This reality, however, does not argue against education but rather for continuing education. This can take the form of general advertising, such as announcements in bar journals concerning new ethics doctrines.
The legal profession can avoid some lawyer ignorance by exercising caution in amending the rules of professional conduct. The profession must continue to improve and adapt its rules of conduct, but the proponents of change should be mindful of the effect of the change on the very lawyers whom they seek to guide.
Based on the above, the profession can initiate actions to safeguard against even unintentional violations. In the next article, intentional violations will be addressed and methods for alleviating such violations suggested.