In law school, back when legal ethics cases existed merely as fact patterns within my case briefs prepared for my professional responsibility class, I vividly remember questioning how the lawyers who found themselves on the wrong side of the Attorney Grievance Commission could have possibly been so misguided and led astray.
Some years out from law school, as I have developed clients and a caseload of my own and work within the context of a five-attorney firm, I have come to appreciate that there are ethical snakes in the weeds behind nearly every bend in the path. I suspect younger attorneys, particularly attorneys who hang out a shingle immediately or shortly after graduating from law school, will share my surprise at how frequently ethical issues pop up in private practice. The next surprise will be how difficult it can be to determine the “right” answer to the ethical issue.
A few years ago, a mentor passed along to me a few guideposts to help me when these ethical quandaries threatened to block my path. I share them with you:
Appreciate your sixth sense
Lawyers innately sense when we are venturing into dangerous ethical territory. Rather than ignore this early warning from within, learn to immediately appreciate when your sixth sense for legal ethics is raising red flags in your brain. In turn, waste no time acting on your sixth sense by further investigating and analyzing the issue.
Talk through the issue with a neutral third party
There are plenty of resources out there for you to determine whether you are at an ethical crossroads and, if so, how you should proceed. Call the Maryland State Bar Association Ethics Hotline or the ethics hotline for your local county bar association for further discussion. Your malpractice carrier will also likely designate a panel attorney on whom you can call. Rely upon mentors. And don’t be shy about making the call and admitting you don’t know the best path forward. You’ll feel a great sense of relief after you make the call.
Don’t be influenced by the monetary impact of the decision
One way to resolve many ethical dilemmas is to decline representation at the outset or terminate representation already undertaken. Of course, this manner of resolving an ethical quandary hurts us squarely in our operating accounts. However, the ethical issue not squarely tackled early can lead to bigger financial trauma down the road, including fee disputes and, of course, the cost of your own counsel if you receive a “love letter” from the Attorney Grievance Commission.
Err on the side of caution
Very seldom have I come across an ethical issue in my practice where I have a clear answer. The answer most often is some form of “it depends.” In other words, the gray area of legal ethics. Even if you get all the informed consents in writing that you could possibly need, the risk going forward sometimes just isn’t worth it. Make a referral and move on to the next case that permits you to sleep better at night.
Good luck! It’s a jungle out there.