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ETHICALLY SPEAKING: Selling your ethics

Michael Berzowski

This is the third article in a series designed to bring ethics to the forefront with regard to the private practice of law.

Upon personal reflection and based upon discussions with various attorneys, I believe that most clients know little or nothing about the ethics rules until there is a blow and they begin searching for things to hang their hats on. To help avert this from happening, it may be a good idea to give a new or existing client a briefing at the outset of the next engagement on what they can expect from an ethical perspective in their dealings with you.

Identify the client

For openers, strange as it may sound, it would be helpful to identify the client. Maybe even say it out loud. This becomes particularly important in dealing with multiple parties or their entities. Similarly, it might be a good idea to identify the client in cases involving one individual and an entity controlled by that individual such as an LLC. Bear in mind that the LLC will protect the individual from being responsible for your legal fees in the event that collection problems at the LLC level develop later.

Confidentiality

Once you get past the conflicts check and competence gates, you could start with a briefing regarding confidentiality. This would be beneficial to both the lawyer and the client in that it would give the client assurance that everything told to the lawyer will be held in confidence. In addition, comfort to the lawyer with regard to revealing information that could be adverse to the client. Bear in mind that the Wisconsin Confidentiality Rules differ from the ABA rules. Once the confidentiality aspects of the relationship are relayed, it should be easier to ferret information and avoid surprises later on.

Communication

Along the same vein, since the largest percentage of violations for lawyer misconduct in public discipline cases is communication, it might be wise to give the client a briefing with regard to SCR 20:1.4 to include the means used to accomplish the clientís objectives. Besides following the rule being a requirement, explaining things to a client so as to be able to participate intelligently in decisions concerning the objectives of the representation would be a good idea. Unfortunately, there is no vaccination that can be given to lawyers that will cause them to promptly respond to clients’ inquiries, even those clients who may have a tendency to go overboard with regard to contacting the lawyer. It was a source of amazement to me to learn in interviewing prospective clients that one of the reasons that they were thinking about leaving their existing lawyer was because of 7 to 10 day delays in responding to telephone calls.

Allocation of authority

Another area warranting discussion would be the scope of representation and allocation of authority between the lawyer and the client as set forth in SCR 20:1.2. As you are aware, Paragraph (a) of that Section confers upon the client the ultimate authority to determine the purposes to be served by legal representation within the limits imposed by law and the lawyer’s professional obligations. This would include, among other things, whether to settle a civil matter, how the clientís objective will be pursued and so forth.

Fees

Last, but not least, it would be a very good idea for you to review the rules with regard to fees as contemplated by SCR 20:1.5. Since this is a topic of vital importance to both the client and the lawyer, it should be covered in reasonable detail. In many instances, there may be reluctance on the part of the lawyer to dwell on this for fear of driving the client out of the office. On the other hand, a clear understanding is better than logging in a considerable amount on what turns out to be an uncollectible matter.

You like dealing with ethical people. The same is true with your clients. If nothing else, highlighting ethical responsibilities should help convey a positive image for you. You can, ethically sell ethics.

Michael Berzowski, is a partner with Weiss Berzowski Brady LLP in Milwaukee. He can be reached at mmb@wbb-law.com.

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