Lawyers are required to comply with Rules of Professional Conduct that outline their duties to the public, to the courts, to their clients, in regard to handling their clients’ money, towards the opposition, and in regard to most things that might concern maintaining the public’s confidence in the profession.
A violation may result in Discipline or may be used as the Standard of Care in an action to enforce a Civil Liability.
There are Rules regarding Admission, Discipline, Competency, Confidentiality, Conflicting Interests, Solicitation, Handling Finances, Fees, and many Prohibitions. A common violation of the Rules is a failure to have sufficient funds in an attorney trust account when issuing payment, resulting in an automatic reporting of the transaction by the bank to the State Bar of California.
A breach of Fiduciary Duty may occur if the lawyer takes advantage of the position of trust and confidence using secrets or an opportunity for their own monetary gain and contrary to that of their client. A violation of the Rules of Professional Conduct does not lead to civil liability, but it is an exact and un-waiver able indication of the Standard of Care from which the lawyer may not waiver and to which an Expert cannot testify otherwise.
Client’s Bill of Rights
A lawyer must handle the matter entrusted with competency. This means to have not just the knowledge and skill and experience to perform up to the standard of care but to also possess the time and resources, and mental and physical ability to complete the task undertaken. The failure to act competently if repeated or habitual may lead to Discipline. In the civil court system, the cause of action for a failure to act competently is called Legal Malpractice.
A lawyer must communicate with their client. A lawyer is required to respond to reasonable requests for information and documents. They also must advise the client of significant developments in the matter being handled. Not every development is significant. Such things as who to sue, for what reasons, the amount of anticipated recovery all must be discussed with the client before any determination is made. Whether to grant opposing counsel a two week extension is not something that requires such consent and is considered an exercise of the “judgment” permitted to all attorneys in representing their clients’ best interests.
A lawyer must keep the secrets of their clients. This is true even after the relationship is over. Any sharing of confidential information must be with the client’s informed consent. Informed consent means that the person approving has been given enough information to make an intelligent decision about the matter, including all the consequences of the action to be taken.
A lawyer is not allowed to take an interest adverse to a client. Lawyers are not permitted to change the terms of their engagement unless they comply with these disclosure and consent rules. Things such as stock, a security against their home, or to enter into any other business deal with a client unless it is Fair to the client and the client has been told of their right to seek independent counsel and given a chance to do so.
Lawyers owe their clients a Fiduciary Duty. Money paid to them in advance for the benefit of the client should be put into a client trust account unless it is agreed otherwise between the parties. The lawyer must not commingle funds. All fees earned must be removed from trust immediately. The lawyer’s own money should not be held in trust at any time. If money is to be held for a long period or is a significant amount, it should be held in an interest bearing account. Otherwise, the interest goes to the State Bar of CA.
Fees must not be unreasonable or illegal or unconscionable. Unconscionability and unreasonableness are both dependent upon a series of factors delineated in a rule of professional conduct. In case of a Fee Dispute, All undisputed funds belonging to the client must be paid to the client promptly. Any disputed funds must be held in trust pending resolution of the dispute which is the lawyers’ responsibility to move forward.
The client is entitled to the entire original file and all his or her property back upon termination. The lawyer may not hold it hostage for payment of reproduction costs even if the retainer agreement says the client is responsible for such costs. The lawyer has to cooperate with new counsel or with the client representing them selves regarding the status of the matter. Lawyers are not permitted to abandon a client on the eve of trial or other wise leave them high and dry. A “noisy withdrawal” is not permitted, so an attorney may not reveal any secrets in order to get out of a case. The client has the right to change attorneys at any time and any provision in an agreement that would have the effect so as to defeat this right such as a penalty clause is unenforceable.
Lawyers cannot use false or misleading statements in their advertising. They are not permitted to call on people who are vulnerable, such as those in hospitals or bereaved. Advertisements must be labeled as such or as a Newsletter in a specified font size and location on the page.