ANTENNAE AND ATTORNEYS
Many of the troubles that befall attorneys are self-made, and the result of a poor response to pressure. In case after case before the Disciplinary Committees, the respondent had been overwhelmed by extreme emotional stress, financial pressure, time pressure, family crises, and inexperience. Circumstances conspire to cause the well-meaning, level headed and responsible attorney to abandon good judgment and resort to foolish choices and desperate measures.
The good news is that this means that you can avoid these mistakes by anticipating problems and planning for them. If you prepare for the time and financial pressures you will face running your own practice, then when your antennae go up because trouble is afoot, you can turn on your radar and avoid danger.
Consider some of the common pitfalls that result in ethical pratfalls and a letter from the local Disciplinary Committee.
Make a pragmatic assessment of every client before you take a case. If the client complains to you about his prior attorney – listen carefully to the nature of the complaints and consider how quickly the client’s dissatisfaction and anger will turn against you. Often these troublesome clients are quite charming at intake, and have complaints about everyone except you – be assured your membership in this exclusive club is for a limited time only.
Now that your antenna is up and the radar is turned on – consider declining this matter. Not all cases are worth the agita, angst or tsuris. If you accept the client, make sure the file will always pass the white glove test. Document all significant conversations in the file and with a letter to the client. If meeting at your office, have your secretary sit in and write a documenting memo afterwards. Whenever you can, leave no room for doubt.
Operators without a law license or an escrow account may approach you with a great idea that will put your license at risk. Young attorneys with a negligence practice are commonly approached by operators of no-fault mills. The deal is that if you do the no-fault work for the medical facility, you get the personal injury actions. At the time the deal is offered, you have lots of time to arbitrate the no-fault cases and you are so hungry for the work. This is a treacherous situation. You will have no control over the activities at the medical facility, and if the facility crosses the line, you risk getting caught up in the investigation. The time and resources spent extricating yourself are not worth the business.
Rosemary F. Palladino is a former Senior Attorney with the Departmental Disciplinary Committee for the First Department. She observes that well-meaning attorneys sometimes get in over their heads when they are embarrassed to admit that they don’t know something they think they ought to know. When the broker says, “that’s how it’s done”, the inexperienced attorney suspends his natural skepticism and accepts the statement, to his sorrowful detriment in the long run.
A newly minted Real Estate attorney may be approached by a broker with a wonderful plan that includes use of the firm’s escrow account. A clever plan for the broker, probably a bad plan for the attorney. One attorney must have thought he found the answer to the cash flow dilemma when a mortgage company not only funneled more than 380 purchasers to the attorney, but also paid the attorney’s fee for the purchasers. In ordering disbarment, the Second Department noted that the attorney “has little, if any, understanding of his fiduciary duty to his clients, who were poor people attempting to by their first home through a Federally-funded program for first-time home buyers.”
Whatever your area of practice, there is a schemer out there waiting to tempt you with a steady client stream, in exchange for the imprimatur of legitimacy created by your law office and your escrow account. Before you enter into any enterprise with a non-attorney, generate every possible scenario that could raise issues of conflict, fraud or breach of fiduciary duty.
Conflicts of interest lurk in every dual representation: representing buyer and seller in a real estate or commercial transaction, representing plaintiff and defendant in a divorce action; representing driver and passenger in a motor vehicle action, according to Jerome Karp, a well regarded lecturer in ethical issues who represents respondents in disciplinary matters. He notes that these situations are a dangerous temptation for both new and experienced attorneys.
If both sides agree in writing to dual representation, the attorney is still open to charges of breach of fiduciary duty when the deal sours. Even if the charge is without merit, the financial, time, and emotional cost of defense can be high.
If the case is beyond the level of your experience, you are ethically obligated to turn the case away, or retain co-counsel with the necessary expertise. Jerome Karp highlights this area as one that often gets attorneys in trouble. If you take on a complex case, or a case beyond your usual expertise, it will require extra time. Do not fall prey to the sin of hubris – carefully evaluate the resources at your disposal and if you don’t have the time, share the fee and get the help to handle this matter and keep up with your other cases as well.
Even the seemingly innocuous notary stamp is ripe for exploitation. You will regularly be approached by people who don’t know any better (and some who do) who ask you to notarize a document for someone who is not present. You already know the answer - so don’t do it. In Matter of Kupperman, the tort attorney forwarded the client’s durable power of attorney to the insurance carrier, notarized by the respondent. Unfortunately the client had died 3 weeks prior to the date of the notarization. The respondent falsely testified that she had not forwarded the power of attorney to the carrier. The Second Department was unmoved by the respondents “previously unblemished record, her youth and inexperience at the time in question, and that she was struggling to manage a high-volume practice.” Noting that the respondent was “guilty of conduct that goes to the heart of the judicial system”, the Appellate Division ordered immediate disbarment.
If you get a letter from the Disciplinary Committee, open it and respond to it. Don’t hide it under your desk blotter. Failure to respond to the Committee can result in a disciplinary charge, even if the underlying complaint was without merit. A measured and full response to a complaint without merit will result in a swift disposition in your favor. Deal with it quickly, like ripping off a band-aid.
Not every complaint is avoidable or predictable. One attorney recently received her first disciplinary complaint – the complainant charged that the size of the ad damnum clause in a complaint drafted by respondent was so large and shocking that the defendant suffered a heart attack (a month after service of the pleadings). Even though this and the other charges in the letter to the Committee were silly, careful response was required, and resulted in a rapid close of the file by the Committee.
Legal representation may be appropriate for some complaints. Even if you choose not to retain counsel, always talk to another lawyer about the complaint for a reality check as to your best course of action. This will help you to cooperate fully, but not foolishly, with the Committee. It is appropriate to provide all necessary and relevant material to the Committee. It is foolish and unnecessary to become defensive and barrage the Committee with excessive and irrelevant material. Sort through the issues before you reply and double-check your response with someone both smart and careful.
Keep your disciplinary file thin. Fee disputes are a good way to get a disciplinary complaint, and even baseless complaints that are dismissed are not fun. It is not always worth fighting a client for every last dollar if the cost is a complaint.
When your antennae go up, determine--- if the course of action you are contemplating is acceptable. While lots of ethical requirements are obvious (you are not allowed to steal from or lie to clients), other requirements are not at all intuitive (depositing a retainer fee in your escrow account may constitute improper co-mingling of funds). If you are worried and are not sure about whether a course of action is within the ethical bounds, don’t do it.
Anticipate stress, think calmly instead of panicking when up against time, ask questions and get information when you are in doubt, and keep an eye out for financial pressure. You worked so hard to get that license to practice law – it’s worth keeping.
 E.g. Matter of Wiss, 2004 WL 220843 (1st Dept. Feb 3, 2004)
 E.g. Matter of Vignola, 218 A.D.2d 310, 639 N.Y.S.2d 315 (1st Dept. 1996);
 Matter of Jordan III, 299 A.D.2d 34, 36747 N.Y.S.2d 249, 250 (2nd Dept. 2002)
 Eg. Shaikh ex rel. Shaikh v. Waiters, 710 N.Y.S.2d 873 (Sup. Ct. Nassau Cty, 2000)
 Eg. Swift v. Choe, 242 A.D.2d 188, 674 N.Y.S.2d 17 (1st Dept. 1998)
 Matter of Kuperman, 284 A.D.2d 200, 728 N.Y.S.2d 67 (2nd Dept. 2001)
 Id at 200