Current and Timely Information and Analysis About
California Attorney Ethics in Practice

Fee agreements and funding.

5 Law Firm Systems to Review for 2017

Properly managing a modern and profitable law firm in 2017 and beyond requires balancing vigilance and innovation.  The legal headlines are full of emerging risks to law firms, including confidentiality breaches and technology disasters.  The legal headlines are also full of competitive risks for law firms.  Passive management of a law firm, even a successful one, is not a good strategy.  You may not change, but the marketplace surely will.

January seems like the right time of year to face up to the things we should be doing, but aren’t.  Here are 5 firm systems that you should review critically in 2017, and annually:

  1. Firm Management. Consider whether your Partnership Agreement or other organizing documents are up to date, with detailed compensation structures that incentivize partners and other attorneys at the firm to think about and comply with all ethical requirements.  Analyze governance policies to ensure that you prioritize compliance with legal ethics requirements, and to ensure an appropriate response in the event of an ethics question or a potential ethics issue.
  1. Clients and Matters. Analyze technology systems for identifying and resolving client conflicts, protecting client confidentiality, and documenting each of the firm’s engagements.  Any system is only as good as the information that goes into it and only works if it is used consistently and uniformly.  Many conflict issues arise from latent conflicts (a subsidiary vs. parent conflict, for example) that may not be obvious on the face of a conflict search.  Ensure that your systems are properly set up, and are being used, and used in the right way.
  1. Calendaring and Deadlines. A sophisticated calendaring system to monitor all firm deadlines is essential.  Take advantage of new technology to integrate calendaring functions into attorney workflow, and to ensure accuracy.  Ensure that your system is durable and can be accessed in the event of an emergency or significant disruption.
  1. Information Management. Client confidentiality in California is not a gray area: you must keep client information confidential.  This means that your firm must have sufficient systems in place to ensure that information is secure.  Analyze whether your information security policies are sufficient (what rules exist regarding laptop security, thumb drives, cloud data, for example).  Analyze whether attorneys and staff are following the policies.  Consider whether your firm’s technology is sufficient to prevent a breach, and/or to respond to one if it occurs.
  1. Financial Management. Review your trust accounting procedures and safeguards to ensure that client funds are handled properly.  The rules are quite clear about what you can, and cannot, do with these funds.  Ensure that your attorneys and staff are properly trained to identify appropriate issues and to handle these items properly.  Separately, consider any alternative fee arrangement from an ethical perspective: does the arrangement place the client’s interest in conflict with yours?  does the arrangement incentive something that could be an ethical concern (e.g., incentivizing attorneys to spend as little time as possible on a case)?  is the arrangement properly documented, to avoid ambiguity when bills come due?

Tracking Proposed Revisions to California’s Rules of Professional Responsibility

California’s Commission for the Revision of the Rules of Professional Responsibility has proposed 68 new and amended rules for attorneys, and is seeking public comment on the  proposed rules.  California is the only state that whose professional responsibility rules do not track the ABA Model Rules.  The Commission has issued an Executive Summary detailing the proposed and amended rules, comments, and dissenting views.  The Commission also issued a detailed list of rule revisions considered, but rejected.  Among other things, the proposed rules include suggested revisions to rules related to personal relationships with clients, conflicts imputed through a law firm, attorney’s fees, and handling clients with diminished capacity.  The public comment period expires September 27.

California Supreme Court Will Review Arbitration, Advance Conflict Waivers, and Disgorgement of Fees

The California Supreme Court has granted review in Sheppard, Mullin, Richter & Hampton, LLP v J-M Manufacturing Co., Inc. to address several legal ethics issues of critical importance to California law firms.  The Court of Appeal in the case below held that the question of whether the firm’s arbitration provision was enforceable was for the court, not the arbitrators, to decide; that the firm’s simultaneous representation of J-M and another client violated California Rules of Professional Conduct 3-310(C)(3); and that the firm’s violation of Rule 3-310(C) made the entire fee agreement unenforceable, meaning the firm was not entitled to any fees related to the matter from the date of the conflict forward.

The Supreme Court’s review will consider the following: “(1) May a court rely on non-legislative expressions of public policy to overturn an arbitration award on illegality grounds? (2) Can a sophisticated consumer of legal services, represented by counsel, give its informed consent to an advance waiver of conflicts of interest? (3) Does a conflict of interest that undisputedly caused no damage to the client and did not affect the value or quality of an attorney’s work automatically (i) require the attorney to disgorge all previously paid fees, and (ii) preclude the attorney from recovering the reasonable value of the unpaid work?”More

Can Advance Conflict Waivers Ever Be Informed Consent?

Recent examples in California courts have demonstrated the limits of advance conflict waivers and the effects of these limits.  Needless to say, finding out that an advance conflict waiver is not effective to resolve a conflict can come as a shock, because it generally happens after-the-fact. Recent cases suggest that attorneys and firms who use advance conflict waivers should go back to the drawing board to evaluate how they are used and, more importantly, what they can accomplish and what they cannot.

Start at the beginning. California Rules of Professional Conduct Rule 3-310(C) provides that attorneys cannot represent clients with conflicting or potentially conflicting interests “without the informed written consent of each client.” Rule 3-310(A)(2) provides that “‘Informed written consent’ means the client’s or former client’s written agreement to the representation following written disclosure.”  In general terms, an advance conflict waiver is a provision in an attorney-client fee agreement that notifies the client of the potential for conflicts and ostensibly gets the client to waive those potential conflicts in advance. But waiving potential conflicts in advance is the trick. Before a conflict arises, how can you adequately describe the circumstances of the conflict to a client so that the client can give informed consent? The answer is fairly straightforward: you can’t. This does not mean that advance conflict waivers are worthless, however.More

Is the Arbitration Provision in Your Firm’s Fee Agreement Properly Drafted?

Some recent California cases have illustrated the importance of a properly drafted arbitration provision in attorney-client fee agreements, and what is at stake. Typically, arbitration is vastly superior to litigation for law firms to resolve disputes with clients related to representation, including fee disputes. Arbitration is confidential, generally has limited discovery and streamlined procedures, and can lead to a swifter resolution of what are sure to be ugly issues. But if your arbitration provision is not properly drafted, it may not be worth much when you need it. Some minor revisions to your fee agreement may mean the difference between arbitrating and litigating disputes with clients. More

Considering Litigation Funding? Ask Some Questions.

Litigation funding appears to be receiving increased attention and it is often presented as a way for parties and attorneys to mitigate the risk of large and risky cases.  If true, this would be a good thing, right?  Certainly many parties who have meritorious cases decline to bring them because they, or their attorneys, cannot fund them.  By facilitating valid litigation, litigation funding can serve an important purpose.  But any attorney considering litigation funding has to ask some serious questions before committing.More

5 Ethics Considerations for Alternative Fee Arrangements

Alternative fee arrangements are fashionable at the moment.  Clients, at least, appear keen to structure outside counsel fees based on a variety of arrangements, some that share risks, some that create incentives for certain outcomes, and others that encourage efficiency.  Many attorneys are less than enthused about alternative fee arrangements, perhaps viewing them as new methods for the old practice of reducing outside counsel fees.  It turns out that both attorneys and clients have reason to be cautious when entering alternative fee arrangements, given the potential ethical issues that may be implicated.More

Can You Make Ethics Compliance a Competitive Advantage?

Among the people who think about the future of law practice and of lawyers, there is a developing recognition that ethics compliance can be a powerful competitive advantage in practice. Most lawyers view ethics compliance as a necessary (it is about as necessary as it gets) part of practicing law, but would you characterize ethics as potential competitive advantage for a law firm?

Well, you should. Ethics compliance, more specifically the demonstrated commitment to the practice of law at the highest ethical standards, is good business for law firms. This hardly needs explaining: if you hold yourself to high ethical standards, you will be better at what you do, more careful, and less likely to become engaged in distracting and potentially career-threatening ethical disputes and controversies. Beyond this, however, ethics compliance can be a unique point of distinction, a source of strong and coherent firm culture, an empowering identity for members of the firm, and a powerful symbol to clients that you are fair and wise, and exercise good judgment.  Isn’t that what you are selling as a lawyer?More

5 Legal Ethics Compliance Systems to Review Today

Ensuring that every element of your practice complies with the highest ethical standards is not just required, it is also good business. Or, to be more specific, permitting an ethical lapse is very, very bad business. A review of these systems may lead to more questions than answers. But asking the right questions is the critical first step. Consider these 5 critical compliance systems in your law practice: firm management; clients and matter management; calendaring and deadlines; information management; and financial management.

In your firm, are all of these systems in place and performing as they should, as part of a complete ethics compliance protocol?More

Is Your Law Practice Due for a Legal Ethics Audit?

As a practicing lawyer, you may have missed an emerging consensus on something that affects your practice every day: your firm should regularly conduct a detailed ethics audit.

The changing legal landscape has created its own ethics challenges. Technology has made it easier for boutique firms to exist, and to compete against large firms. But large firms typically have dedicated in-house attorneys—and significant resources—focused on compliance with ethics rules. These costs are spread over hundreds or thousands of lawyers. If not properly managed, ethics compliance can become a competitive disadvantage for small and mid-sized firms.

For practicing attorneys, the legal world is changing rapidly. Understanding and properly applying the ethics rules is increasingly important. Some have even suggested that it will be a critical way to establish a competitive advantage as the future of law unfolds.
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