October 18, 2015
Fearing Fear Itself in Legal Ethics
Many practicing attorneys could summarize their legal ethics compass with precisely two time-worn bromides from law school. Don’t sleep with your clients. Don’t commingle your clients’ funds.
These are still words to live by. So if you are complying, then keep up the good work. These concepts stuck with us because law schools do an excellent—and necessary—job of scaring students into acknowledging the critical importance of ethics rules. As a result, most practicing attorneys have a robust, fear-based relationship with legal ethics. And when it comes to legal ethics, fear can be a very good thing: it can make you slow down, ask the right questions, view circumstances objectively, and act appropriately. But fear alone can also lead to denial, rash behavior, unchecked emotion, biases, and mistakes.
Continue to be vigilant about avoiding ethical missteps. Don’t try to banish fear, but consider channeling that fear into a more functional, more practical relationship with legal ethics in daily practice:
- Systematize legal ethics in your practice. Attorneys routinely counsel clients how to manage risk by systematizing, and lawyers already systematize ethical risk in their own practices. A conflicts database, and calendaring software, are obvious examples. But these are ad-hoc solutions to just two ethical issues. You should have similarly robust systems in place to deal with all of the other ethical issues we face in practice.Client intake, information security, time-keeping and billing, professionalism and civility, fee agreements, technology, and similar critical firm functions all should be coordinated from the perspective of ethics compliance, systematically. These firm systems should prevent, or significantly reduce, the likelihood of an ethical lapse for all of the ethical issues, not just the most obvious ones.
- Develop the responses before the problems arise. Preventing ethical problems is the goal of any compliance system, but in practice it’s not possible to avoid every ethical issue. Anticipate that ethical questions will arise, and put protocols into place for the appropriate responses before that happens. Thinking through ethical issues that could come up, and developing appropriate responses before that happens will permit you to analyze the issues with a clear head.Airline pilots think a lot about plane crashes, even though they are statistically very unlikely to happen. And pilots don’t wait until after a double-bird-strike to decide how best to respond. They recognize that when a crisis happens, they may not have the time or the ability to think clearly. So they have extremely detailed plans in place for what to do, before the problems arise. So should you.
- Make ethical compliance a policy priority. Ethics compliance should be the most critical aspect of a lawyer’s professional identity. Consider organizing your entire practice around ethics compliance as the first premise. This means integrating individual ad-hoc compliance systems into a comprehensive ethics compliance protocol. All firm systems are coordinated with the ethics protocols, and firm systems are optimized for ethical compliance. Let’s embrace our fear of ethical breaches. It’s a professional tradition, seared into our brains in law school, and it generally serves us well if it makes us more vigilant about ethics compliance. Recognize, however, that a fear-based response to ethical issues is not an adequate response. Use the fear training to make ethics compliance a highly systematized, planned, and comprehensive policy in your practice.