By Yen T. Cam
Assistant Ethics Counsel
There are few better ways to gauge what ethical issues are on the minds of Florida lawyers than to look at the calls made to the Bar’s Ethics Hotline. In these hard economic times, there have certainly been some recognizable trends. Struggling to make ends meet, lawyers are searching for ways to cope.
Many lawyers are looking for new ways to increase their revenue. One of the obvious ways is through advertising, and the Hotline gets countless questions regarding this area. The rules on lawyer advertising can be tricky to decipher at times. The Florida Bar publishes a handbook on lawyer advertising and solicitation that can be found on www.floridabar.org. The handbook contains general information and the most current rules, as well as samples of complying and noncomplying ads.
The more innovative lawyers come up with creative business arrangements. After the Foreclosure Rescue Act went into effect in October of 2008, the Hotline received a vast number of calls from lawyers who had been approached by nonlawyer companies trying to skirt the law by teaming up with lawyers. So many calls were received that an ethics alert was posted on the Bar’s Web site warning against such arrangements. Other popular proposed arrangements involve attempts at getting around rules restricting fee-splitting and solicitation. There are admittedly gray areas in the Rules of Professional Conduct, and staff at the Ethics Hotline attempt to help callers navigate through them. However, if the purpose of a call is to brainstorm creative solutions to get around the rules, the callers probably won’t get what they want. Ethics Hotline staff generally try to advise callers on ways they can stay out of trouble, which usually means interpreting the rules in a conservative way.
Too often the Hotline gets calls from lawyers who have become suspicious about e-mails they had received and are realizing that they might have fallen victim to a scam. Slow business often makes lawyers more apt to take cases they normally wouldn’t have, leaving them more susceptible to falling victim to swindlers. There have been many recent articles, including a couple in the News, detailing the specifics of these scams. There are plenty of resources a lawyer can turn to, however, to verify whether a deal is legitimate. The Attorney General’s Office has a consumer fraud list on its Web site, and Snopes.com is a great place to check out potential e-mail scams. A quick Internet search will also turn up the many articles written on the subject. In short, attorneys are advised to be vigilant when presented with scenarios that seem too good to be true.
Of course, getting clients through the door and new cases on the desk mean little unless a lawyer can actually collect fees. Many Hotline callers complain of unpaid bills by clients and wonder what they are ethically allowed to do. Fortunately, remedies like retaining liens and charging liens are available. Charging liens may only be asserted in connection to a specific matter in which suit has been filed. A retaining lien, on the other hand, can be asserted for all amounts owed by a client to a lawyer regardless of whether the funds or property upon which the lien is placed is related to the matter in which charges were incurred, unless the funds or property were being held for a specific purpose. However, the ability to assert a retaining lien is limited by the lawyer’s ethical obligation to avoid foreseeable prejudice to a client. An informational packet regarding attorney liens can be found online at the Bar’s Web site. It should also be noted that an attorney may not take action adverse to a client to enforce a fee agreement until the representation has terminated — whether through conclusion of the matter or withdrawal. Also, suing a former client for fees should only be used as a last resort.
Even with all the extra efforts made to boost revenue, many law firms are still not bringing in enough money to make ends meet and have had to resort to layoffs or hiring freezes. As a result, many lawyers are starting solo practices out of necessity. Likewise, many newly admitted lawyers facing a tight job market are finding themselves out on their own. The danger, of course, is that these mostly inexperienced lawyers are now faced with learning how to practice on their own while also struggling with the stresses of starting and managing a law office. These lawyers might out of desperation or ignorance take cases that they do not have the ability or resources to handle. While the Ethics Hotline can provide guidance on legal ethics matters, it is barred from providing legal advice.
Fortunately, resources such as SCOPE exist. SCOPE, or Seek Counsel of Professional Experience, is a program that allows lawyers to get free advice on substantive and procedural law from seasoned attorneys. Callers to SCOPE can speak with volunteer attorneys who have at least five years of experience in a particular area of law. While the calling attorney must still exercise his or her independent judgment, the SCOPE attorney may be able to provide guidance on the best approach to handling a particular matter. An attorney may reach SCOPE at (800) 342-8060, ext. 5807, or, in Tallahassee, at (850) 561-5807.
The Hotline has also received a lot of recent calls from lawyers facing the prospect of personal bankruptcy and worried that it might affect their ability to continue practicing. The Bar rarely gets involved with lawyers filing personal bankruptcy unless there are other reasons to do so. The only rule pertaining to bankruptcy is 5-1.2(e)(3), which provides the Bar with grounds to audit a lawyer’s trust account upon the filing of the bankruptcy petition. The attorney is not required to provide the Bar with notice of the filing nor is the Bar required to actually audit the trust account. The Bar will, however, investigate a lawyer if conduct involving dishonesty, deceit, or misrepresentation in the filing is alleged.
The possibility that a creditor might pursue a lawyer’s assets is one very good reason for the rule against the commingling of lawyers’ and clients’ funds. The rule ensures that the clients’ funds will be safe in separate trust or escrow accounts should the lawyer’s accounts be targeted. Client funds must never be held in a lawyer’s operating or personal account. Additionally, lawyers must not place any of their own funds in client trust accounts except for a negligible amount to cover bank fees, as the hiding of lawyer funds in client accounts could put client funds at risk if creditors target a lawyer’s assets.
Obviously, no matter how hard times get for lawyers, the “borrowing” of client funds is never the answer. Lawyers are fiduciaries and must act with care in handling funds of clients and third parties. There is a presumption of disbarment if a lawyer misappropriates trust funds. Additionally, lawyers can be prosecuted criminally for theft.
The Hotline has also received a considerable number of calls from lawyers concerned about how to handle substance abuse and mental health issues by coworkers. While these issues can’t necessarily be attributed to the state of the economy, it seems logical that along with dire financial straits may come depression or substance abuse. Lawyers in need of help can turn to the Florida Lawyer’s Assistance, Inc., an organization that helps lawyers, judges, law students, and their support staff deal with mental health, substance abuse, and other disorders that affect them. The program guarantees the confidentiality of persons who voluntarily seek assistance. Lawyers can reach Florida Lawyers Assistance, Inc., at http://fla-lap.org.
Times are tough for a lot of lawyers right now, and it may be tempting to slip into those grayer ethical areas. However, the last thing a lawyer wants to face on top of financial woes is a grievance proceeding. Fortunately, The Florida Bar and other organizations offer resources that can provide assistance or even just a patient ear.
For questions about these and other ethics issues, call 800-235-8619. The Ethics Hotline is open Monday through Friday from 9 a.m. to 5 p.m.