CBA Record January-February 2022
suspended for four years for a Facebook exchange in which the lawyer counseled a non-client on how to get away with murdering her soon-to-be-ex-husband (yes, really). Pay attention to letters you receive from the ARDC. As someone who receives a fair amount of mail from the ARDC (on behalf of clients!), I understand well the stomach-churning feeling that lawyers can get when correspondence arrives from this agency. However, the absolute worst thing you can do is ignore that letter or e-mail. Bite the bullet, open it, and hope it is just your annual registration notice. If it isn’t, figure out a plan to deal with it immediately. If it is a Request for Investigation directed at you, your best bet will usually be to start with your insurer, who often will be able to quickly connect you with defense counsel. Remember that lawyers have an ethical obligation to participate in ARDC proceedings, even those in which they are the target; failure to do so can result in additional charges. Conflicts checks need to work. Law- yers should have an internal way to track conflicts. Many conflict management sys- tems can work for small firms. While most conflicts are waivable, it is still important to track conflicts over time. It is critically important to identify when you need a waiver, provide your client with the nec- essary information that will allow them to provide informed consent, and most importantly, get that informed consent in writing. Avoid conflicts problems at all costs, because they can lead to not only disciplinary proceedings, but costly mal- practice lawsuits, disqualifications, and fee disgorgements. If you are defending one of these, you want to be able to point to a robust conflicts check system that you use consistently to track conflicts over time. And remember, conflicts systems are only as good as the information you put into them—so treat this process carefully.
PRACTICAL ETHICS BY TRISHA RICH 6 Essential RiskManagement Strategies for Small Firms
I f you have paid any attention at all to the annual statistics from the Illinois Attorney Registration and Disciplinary Commission, you have probably noticed that the majority of attorneys disciplined by the ARDC are solo practitioners or members of small law firms. Many theories exist as to the reason, including that solo practitioners and small firm lawyers are stretched more thinly as they navigate the two full-time roles of practicing law while maintaining a full-time small business. Regardless of the reason, solo practitio- ners and small firm lawyers can immediately implement some easy risk management strategies to mitigate risk. Among them: Do not take on a risky client. This is probably the most important risk manage- ment tool you can implement. You cannot always identify a bad client before signing an engagement letter— but a lot of the time, you can. Avoid taking on clients with red flags: for example, you’re the third attorney they have hired for their matter in a short period of time; they came to you at the last hour right before a deadline because they wanted to handle the issue themselves; their expectations are completely unrealis- tic; they are overly involved or too emotion- ally attached to their matter; or they’re your family. These aren’t always warning signs, but they often are. Think hard before creat- ing an attorney-client relationship with one of these types of potential clients. Understand your trust accounts. Many, many lawyers each year are disciplined for
trust account violations. It is imperative that attorneys understand the trust accounting regulations inside and out, and even then, I recommend hiring a bookkeeper for assis- tance. On its website, the ARDC dedicates an entire page to trust accounting. That page includes a link to the ARDC’s Client Trust Account Handbook, which is a very helpful resource. However, even in cases where lawyers do hire a bookkeeper, they cannot completely abdicate trust account- ing duties to the bookkeeper—lawyers are ultimately responsible for the work of their nonlawyer assistants under Rule 5.3. When it comes to trust accounting, the buck truly stops with us. Implement a robust docketing system. Make sure you have a thoughtful and consistent way to track court hearings and other deadlines. Don’t write stupid things on social media. Someday soon, I will devote an entire column to social media missteps. For now, I will break this down into two broad categories. First, lawyers should be very careful about how they respond to negative online reviews and be especially careful to avoid revealing any confidential informa- tion. Second, recent years have brought an increase in lawyers being disciplined for writing inappropriate things online. Two cases from this past year include Matter of Traywick from South Carolina, in which a lawyer was suspended for six months for his incendiary Facebook posts, and In re Sitton from Tennessee, where a lawyer was
TrishaRich isa litigator and legal ethicist at Holland&Knight. You can reach her at email@example.com, on LinkedIn at linkedin.com/in/trisharich, or on Twitter @_TrishRich.
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