United States: Tips For Ensuring Compliance With Ethical Obligations

Last Updated: December 27 2017
Article by Shari L. Klevens and Alanna Clair

Most attorneys are aware of the ethical obligations owed to clients and take them seriously.  However, instead of simply assuming that their attorneys are in compliance with their ethical obligations, law firms can take steps to assist attorneys when ethical issues arise and, where possible, minimize the potential harm to the client, attorney and firm.

A firm’s efforts to help its employees and partners comply with ethical obligations can help avoid (or minimize) a legal malpractice claim or bar grievance. The firm also likely wants to be in a position where it is advised immediately of any potential issues that could lead to claims or grievances so that it may be possible to take corrective action. The alternative—first learning of the problem when served with a lawsuit—can complicate the risk management efforts of the firm.

The goal for law firms in educating attorneys and other employees likely is both to reduce the likelihood of ethical mishaps and to make sure that, when mistakes occur (even in spite of good faith efforts), the problems are not compounded because the individuals involved are afraid to seek help.  Below are some tips for law firms to help educate their employees regarding their ethical obligations and to encourage them to act in accordance with those obligations.

Are There Resources Available?

Law firms can encourage or even sponsor continuing legal education courses as an opportunity to educate attorneys on recent developments in the law, especially as they pertain to an attorney’s ethical and professional duties. As continuing legal education is mandatory in many jurisdictions (including California), firms can make it easy for attorneys to satisfy state bar requirements. Many firms will sponsor CLE courses from reputable organizations or will even obtain credit for their attorneys who attend seminars within the firm.

Firms can also consider whether there are issues of ethics compliance that can be explained to nonattorney employees, particularly in the realm of changing technologies. For example, employees may not be aware of what a phishing email looks like, but if an employee opens one, it could expose the firm to loss or risk. The increasing sophistication of cyberattacks on law firms means that risks can come from less obvious sources and can be harder to identify. Thus, risk management presentations or even simply emails with risk management tips can help attorneys and staff stay abreast of the latest risks.

Such educational sessions, whether through CLE, internal emails with tips, or other sources, can help enhance the law firm’s reputation, particularly in the eyes of their insurance company. Some insurers will even reduce premiums or provide additional perks to those firms who show evidence of taking their ethical and educational obligations seriously.

Is There a Culture of Disclosure?

As noted above, law firms may find it more difficult to defend against an ethical violation or malpractice issue if they learn about it for the first time once it becomes a bar grievance, malpractice suit, or other potential exposure. However, it can be a difficult balance for law firms to create a safe space for people to identify and self-report errors while still allowing the firm to enforce its standards of conduct.

The firm has as much interest in identifying and mitigating errors as does the employee, as sometimes it can be too late for the firm to correct the mistake or mitigate any potential losses when the issue has already developed into a malpractice suit. In addition, when suspected or observed mistakes are reported to the firm’s general counsel, the firm may be able to benefit from the in-house attorney-client privilege between the attorney and the firm.

There are other serious risks that are perhaps less obvious when employees fail to report potential mistakes or errors to appropriate law firm personnel. For example, the law firm’s insurance coverage could be jeopardized as, under many policies, law firms have to report to their insurers when applying or renewing their insurance of any circumstances that could give rise to a claim.

The balance that many law firms seek is to create an atmosphere that promotes disclosure and encourages attorneys to seek advice as soon as ethical or professional liability issues arise. In order to combat the reluctance to report issues for fear of retribution, it is helpful for firms to emphasize that the primary goal in encouraging disclosure is to minimize the law firm’s risks, and not to punish employees for the mistakes or complications that will inevitably occur in the practice of law.

Is There Time For a Break?

The practice of law is notorious for contributing to burnout, which can lead to preventable mistakes. Although it may seem to attorneys and staff that a vacation is impossible given the client demands and deadlines, the importance of taking time off is well-documented. Before taking time off, however, attorneys can take steps to ensure that client needs are being met in their absence.

The fact that vacations may require other employees to share responsibility to account for those out of the office can also assist in risk prevention.  In those situations, employees can provide helpful tips to each other and even potentially identify mistakes that may otherwise have gone unnoticed.  There also have been scenarios in which a corporation or firm only uncovers wrongdoing by an employee—such as financial mismanagement or embezzlement—once that employee takes a break from the office and is replaced by another employee who discovers that something is amiss.

The end goal of each of the tips suggested above is to help attorneys and staff provide effective services to clients while adhering to ethical obligations. Addressing these issues as a team effort is helpful to attorneys, staff and their clients.

Dentons is the world's first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world's largest law firm, Dentons' global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries. www.dentons.com.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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