Understanding Lawyers
I write articles to help people sort out the confusing legal issues that affect their businesses. When people who are not my clients ask me to comment on specific situations, though, I always say no. It’s not because I don’t want to help; it’s because I’m a lawyer.
I know – that sounds ridiculous and it doesn’t much help the “image issues” my profession continues to face. But it’s the responsible thing to do.
Here’s why.
Lawyers are bound by a code of professional responsibility. Make all the jokes you want, but we take this very seriously. This code exists to protect clients and to provide an ethical framework for the practice of law. A lawyer who violates the code is subject to disciplinary action, which could include disbarment.
It’s important for you, the clients, to understand how this all works.
· You need to know why a lawyer might say “no” when you ask for help.
· You need to know why a lawyer might insist on spending more time on a matter than you think “should” be necessary.
· You need to know why somebody else’s lawyer might refuse to speak with you.
· You need to understand why a lawyer might refuse to represent both you and your business partner.
And you need to know that in 99 percent of all cases (not an actual statistic; just my view), none of this has anything to do with money. It has everything to do with the code of professional responsibility.
A note before we begin: Although each state’s code is slightly different, many are based on the American Bar Association’s “Model Rules of Professional Conduct” (visit www.abanet.org/cpr/mrpc/mrpc_toc.html). For ease, my references will be to the ABA Model Rules.
Let’s say you are a glass artist, and the local university wishes to commission a large-scale work for installation in a public building. This is a big deal, and you know there are many important issues to address in your written agreement with the university. You know you need legal advice in this matter. However, there are no arts attorneys in your region, and you do not have access to an arts-specific legal assistance group, such as Volunteer Lawyers for the Arts. So, when the contract arrives, you take it to your cousin Jake, a real estate lawyer, and ask him to “take a look.” After all, a contract’s a contract, right?
Wrong. Jake can tell you if the contract is technically sound and legally enforceable, but as a real estate guy, he’s likely to miss the arts-specific issues that matter most. These include, for example: copyright ownership; reproduction and licensing rights; title and re-siting restrictions; maintenance and attribution requirements; prohibitions against destruction and mutilation, etc. So almost certainly, you won’t be getting the advice you need.
On top of that, what ethical dilemmas have you created for Jake by asking him to review your contract?
Once you establish a client-lawyer relationship, the lawyer owes you all of the many duties set forth in the Rules. These include, among others: duties of competence and diligence; duties regarding communications and confidentiality; and duties regarding conflicts of interest. These are very serious duties, and the lawyer who fails to fulfill them is subject to disciplinary action. Because this is such a big deal, therefore, lawyers have to be very careful not to establish client-lawyer relationships inadvertently.
Did you and Jake establish a client-lawyer relationship? If Jake agreed to review your contract, yes — absolutely, you did — even if he offered his comments for free. In such case, Jake owes you all of the duties under the Rules, one of which is a duty of competence. The general rule is that the client-lawyer relationship commences as soon as the client reasonably relies on the lawyer’s advice.
On the other hand, according to the Rules, if you communicated with Jake “unilaterally,” without any reasonable expectation that he was willing to discuss the possibility of forming a client-lawyer relationship, none of the duties kicked in. This is why, when non-clients contact me with specific questions, my response is always (albeit politely and apologetically) that I cannot offer individualized legal advice to anyone who is not my client. If I were to “shoot from the hip” without first running a conflict check, determining whether the issue is properly within my practice areas and spending enough time to analyze the issue thoroughly, I could find myself owing duties I might not be able to fulfill.
Next example: Suppose, when you showed up with the contract, Jake told you he’d consider representing you, but that first he’d like to ask you a few questions to see if you and he were a good match. Does that mean the two of you established a client-lawyer relationship? No, it does not. But even in this situation, Jake would owe you some (but not all) of the duties under the Rules.
Rule 1.18, entitled “Duties to Prospective Client,” states that anyone who discusses with a lawyer the possibility of forming a client-lawyer relationship is a “prospective client.” Even if a client-lawyer relationship does not subsequently ensue, the lawyer is still bound not to use or reveal information learned from the prospective client during the consultation. The ABA’s comments to this Rule observe, “A lawyer’s discussions with a prospective client usually are limited in time and depth and leave both the prospective client and the lawyer free (and sometimes required) to proceed no further. Hence, prospective clients should receive some but not all of the protection afforded clients. Even with this limitation, lawyers must be careful in their discussions with prospective clients because information they receive in a consultation could potentially disqualify them from representing others.
There are other reasons why a lawyer might decline to speak with you. One stems from Rule 4.2, which says a lawyer may not communicate about a matter with a person the lawyer knows to be represented by another lawyer in the matter. For example, let’s say you are a gallery engaged in a fairly high-stakes negotiation with an artist. You have a lawyer, and the artist has a lawyer. You want to save time, though, so you call the artist’s lawyer directly to discuss an issue related to the negotiation. The artist’s lawyer won’t accept your phone call. Now you’re really steamed, convinced those [expletive] lawyers are all in cahoots to squeeze every last dollar right out of you.
Not so. Rule 4.2 strictly prohibits the artist’s lawyer from communicating directly with you. The ABA explains: [Rule 4.2] contributes to the proper functioning of the legal system by protecting a person who has chosen to be represented by a lawyer in a matter against possible overreaching by other lawyers who are participating in the matter, interference by those lawyers with the client-lawyer relationship and the uncounselled disclosure of information relating to the representation.
Lawyers also have to worry about potential conflicts of interest. Often, this concern arises when two or more business partners approach the same lawyer for joint representation. There are ethical ways for the lawyer to represent business partners; it happens all the time. Remember, though, the lawyer owes all of the duties under the Rules to every person with whom the lawyer forms a lawyer-client relationship. So when paradise sours and the business partners start fighting, the lawyer has a whole host of ethical dilemmas.
Best practice, when forming a partnership or other business alliance, is for each person to consult his own lawyer. Once again, this is not a nefarious scheme to generate revenue; it’s a means for helping the lawyer meet his or her obligations under the Rules. You should expect the lawyer to insist that each business partner sign a “multiple representation” agreement (or something similar), in which the lawyer discloses the possibility of conflict and seeks each client’s written, informed consent; and if you find yourself in this situation, it’s a good idea to ask another attorney to review the conflict waiver you are being asked to sign. Finally, if actual conflict does arise, do not be surprised if the lawyer withdraws altogether and refuses to represent you or any of your partners.
Always feel free to quiz your attorney about the Rules, as doing so is a good way to weed out practitioners you’d be better off avoiding. And when a lawyer says “no,” don’t take it personally. The Rules exist for your protection.
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