Bar Review: Ethics

The topic of ethics for bar exam purposes is comprised of 9 main areas. There are:

  • Duty of Confidentiality
  • Duty of Loyalty / Conflicts of Interest
  • Financial Duties to Client
  • Competence
  • Duties of Candor to the Public: Advertising and Solicitation
  • Duty of Candor to the Court
  • Fairness to Opposing Counsel
  • Duties of General Fairness

Ethics is not as heavily tested as other areas on the Bar Exam. However, it still pops up in essays so having a good working knowledge is important. Maybe I’m simplistic, but when I was studying this, I remember thinking it was all so obvious. As I was reading over the rules I recall that the word “duh!” kept repeating in my head.

This isn’t rocket science. Basically, don’t be a schmuck. Don’t be a self-interested moron who has no respect for your clients, honesty, integrity, the Court, or your opposition. Play fair.

However, the Bar Examiners will want you to be more specific. So here goes. The bulk of duties that you will encounter on the exam are duties that are owed to your clients.

Duty of Confidentiality

This is a duty that applies regardless of whether the client knowsBar Review ethics, duty of confidentiality about it or requested it. It applies whether the information in question is harmful to the client or not. The rule is that an attorney is not allowed to disclose any information that pertains to the representation of a client.

Seems pretty simple, huh? Well, as in all of law, there are exceptions.

  • Consent
  • Crimes
    • You may reveal information if you reasonably believe that maintaining confidentiality may result in great bodily harm or death to someone.
  • Fraud
    • The ABA allows you to do this if the revelation would stop or lessen substantial financial loss, or if the client is using your services to commit such fraud.
  • Defending Yourself if Sued for Malpractice
  • Compelled
    • By law or final court order

Duty of Loyalty

This duty is essentially concerned with conflicts of interest. You have a duty to your client not to be involved with anything or anyone whose interests might be in opposition or conflict with the client’s interests.
Bar Review, ethics, duty of loyalty, conflict of interest
The person with conflicting interests could be you, another client, or a third party. You should look for conflicts of interest BEFORE accepting a client. However, if one gets by you and you discover the conflict after taking on a client, flag them on the bar exam and discuss getting consent.

Consent requires disclosing the conflict to your clients who are involved. If confidentiality short-circuits your disclosure, then consent cannot be obtained and you will have to withdraw from representation. If consent is given, it must be given in writing. Don’t ever forget that CYA file.

In order to get consent, the ABA requires that you must reasonably believe that you can continue to represent all parties, and all involved parties must agree. This is an OBJECTIVE standard, so if you think you are Superwoman, that won’t work. Some conflicts are inherent and can’t be waived, no matter what super-powers you possess. However, others can be waived by the client.

Financial Duties to Client

The ABA requires that attorney’s fee agreements be understandable and clear to the client. Non-contingency agreements are handled differently than contingency agreements.

Non-contingency attorney’s fee agreements must include how the fees are calculated so there is no misunderstanding. It should also include, as precisely as possible, what attorney’s services are covered under the agreement. Lastly, the duties of both the client and attorney should be addressed.

Contingency fee agreements are a bit different. Here, the client should be made fully aware of what percentage of any award will be taken as attorney’s fees. With any contingency case, there will be expenses. These expenses can escalate into the thousands and be quite significant for complex civil litigation. It should be spelled out in the contract whether or not the expenses will be deducted as part of the attorney fees, or if they will be a further deduction from the client’s recovery award.

In plain language, fee agreements should be written so that there are no surprises for the client.

Competence

Competence essentially means that you know the area of law before you accept a case. If you are unfamiliar with an area of law but want to take the case, you must be able to put in the time to learn it without delay to your client. You can also team up with another attorney who is more versed in the area of law in order to learn the ropes.

But generally, staying out of areas you are unfamiliar with is a good rule of thumb. You can be held responsible if something slips by you due to your lack of knowledge. It’s a risk. The risk is:

  • Disciplinary action by the Bar
  • Disqualification from a case
  • Civil liability

Right. It’s no joke. You must use legal knowledge and skill, as well as proper preparation for all cases to be considered competent. If you need to learn a new area of law, sit as second chair for awhile until you’re up to speed!

Duties of Candor and Fairness

I lump these all together because really, they are no-brainers in my book. As an attorney, you have to be fair. You must be honest. With everyone. There will be times you may want to hide that you forgot something, etc., but you can only do that within very limited boundaries.

You represent the legal system. Through your advertising, you can appear sleazy. Don’t. The rules on advertising and solicitation are important. Know them so you don’t overstep.

Candor to the tribunal and opposing counsel is also obvious. When I first started practicing, it shocked me how many criminal law attorneys actually do not show respect for the opposing party. That is simply unacceptable, in my book and in the ABA’s book. Some of them are downright sleazy. It’s sad.

bar review, ethics, honesty
Don’t be one of them. Judges will respect you if you are honest. They will come to trust what you say, and this will benefit all of your future clients. Attorneys who get a reputation for dishonesty, both in and out of court, will feel the pain of that decision for decades.

So learn the rules during Bar Review. Then, after you pass the exam, remember that you have the privilege and honor of representing our judicial system to your clients and everyone around you. Prove that you are up to the task. It feels so much better than acting the schmuck for short-sighted gain.

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