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LAWBIZ COACHES CORNER: Firms, public expecting more from lawyers

Ed Poll is a speaker, author and board-approved coach to the legal profession. He can be contacted at edpoll@lawbiz.com. Also visit his interactive community for lawyers at www.LawBizForum.com.

Lawyers owe many duties to any number of people, but they’re increasingly being asked to do even more.

The first of any consequence is the duty owed to clients. That includes the duty of confidentiality, the duty of candid and fair dealing, and the duty of assessing reasonable charges for legal work performed. The latter also includes the lawyer’s duty to perform and deliver legal services efficiently; including through use of technology that meets the prevailing community standard. Current rules of professional conduct thus specify technology as a factor in professional responsibility.

Next, there is a fiduciary duty to one’s partners or law practice shareholders. Appellate decisions are replete with matters where one partner sought to take advantage of another partner and violated this fiduciary responsibility, such as when a departing lawyer seeks to redirect a client relationship before informing other firm members of the departure for a new firm.

Yet another such duty arises if a bankrupt law firm claims certain accounts receivable from clients, when a departing lawyer has obtained not only payment of the receivable that is on the book of the law firm in bankruptcy, but also obtains money for personal work in process on a matter. The trustee in bankruptcy may seek to “claw back” the amount of money thus obtained.

Finally, a firm partner owes a fiduciary duty to lenders who expect parties to a line of credit or other law firm loan to submit fair and accurate financial statements, and to keep the lender informed of any negative factors that might impact the firm’s credit during the time of the loan.

Increasingly there is a “new” duty of civility and professional conduct. Some bar associations have actually enacted a civility provision in the rules of professional conduct; others have merely interpreted that as a requirement of a responsible lawyer. Bar associations, likewise, require a duty to the community in the form of pro bono service.

An “estate plan for the practice” is another emerging duty. The idea here is to provide for the continuity of the law practice in the event of death or disability of the primary lawyer. The focal point is the protection of the public such that no client is left adrift when a lawyer dies or becomes disabled.

The litany of duties that a lawyer must meet also includes:

  • Court dates, filing dates and the like need, whether the lawyer is in the office or not. Failure to protect clients by meeting them may be negligence per se and evidence of malpractice.
  • If the State Bar has in place “mentoring” provisions, there is a duty to young lawyers.
  • Is there a duty to the legal system to educate the public by writing and speaking? If the answer is “yes,” this is another duty required of the lawyer.
  • Is there a duty to supervise other lawyers, particularly young associates, in one’s office? In some states, the answer is “yes,” with responsible partners being liable in a fiduciary sense for the conduct of younger lawyers.

The life of a lawyer is filled with duties, responsibilities and obligations that balance the pleasures and challenges of legal practice. The issue is one of professional responsibility; the penalty for not meeting it is a potential disciplinary claim.

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