Hubert Law Office - Our Success is Measured by Your Success

 


Attorney Ethics

 

1. Our Confidential Relationship. Everything a lawyer (or any member of our firm) learns about a client during the representation of the client is confidential. We are not allowed to discuss your case or legal matters with anyone outside the firm. We are strictly prohibited from breaking the sanctity of the attorney-client relationship.

What you tell your lawyer is similar to what you tell your priest or doctor. We can't be effective in helping you unless we know all of the facts, including all of the unpleasant and embarrassing facts. To encourage full disclosure by you, we are prohibited by ethics and by law from discussing anything about your case with anyone. The mere fact that you need a lawyer can sometimes be a matter you don't wish to disclose. For this reason, we do not even disclose the names of our clients unless we have their permission.

Lawyers are forbidden to discuss these confidences with their spouses or family members, or to discuss a client or case in a public place where they might be overheard.

If a lawyer brags to you about the names or legal matters of a client, you should be concerned about the ethics of this lawyer and whether you can expect your name and the details of your legal matter to be broadcast to people who might use the information against you.

In truth and in fact, lawyers sometimes do discuss their cases with other lawyers or with their spouses, particularly the unusual and bizarre cases. Normally the discussion would be in such a way that the identity of the client could not be identified. Any lawyer who discusses a client or client's case out of the office runs the risk of being unethical and being disciplined by the State Bar.

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2. Contacting adverse party represented by counsel. Contacting an adverse person represented by an attorney is unethical. A lawyer cannot ethically contact someone on the other side of the case, if that person or party is represented by an attorney.

Therefore, if you have a dispute with Mr. A, Mr. A's lawyer cannot communicate with you orally, in writing or through a third party, and I cannot communicate with Mr. A. Mr. A's lawyer can communicate with me or I can communicate with him. You should not talk to Mr. A unless we have told you to do so. You could inadvertently say or do something prejudicial to your case. There is no ethical restriction on the adverse parties talking to each other, but you shouldn't talk to your adversary without first getting the approval of your lawyer.

The most common violation of this rule by unethical or ignorant lawyers is for a lawyer to send a letter to his own client with a copy to the adverse party, or for the lawyer to send a letter to the other lawyer with a copy the other lawyer's client. If this happens to you, please report it to us immediately.

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3. Trust Accounts. Mishandling your trust money is unethical and illegal. Lawyers are required to have trust accounts for client funds; they may not mix client funds with personal funds and may not borrow funds from the client funds. Unless we make special arrangements, under New York State law, interest on trust accounts goes to the State of New York. The State allocates the interest for purposes related to the improvement of the administration of justice, including, but not limited to, the provision of civil legal services to groups currently underserved by legal services, such as the elderly and the disabled, and the enhancement of civil legal services to the poor through innovative and cost-effective means, such as volunteer lawyer programs and support and training services.

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4. Fee Problems. Fee problems can also be ethics problems in certain cases, such as where a fee amount might be excessive in view of the facts involved. Most local Bar associations have a procedure for arbitrating or deciding fee problems between lawyers and clients. This firm is always willing to discuss fee problems and recognizing there can be honest differences of opinion over fees, we are always willing at the inception of a fee dispute, to let the Bar Association arbitrate a fee problem. The Bar Association fee arbitration committees usually bend over backwards to protect the client. Normally, fee problems are not ethics problems but on some rare occasions they are.

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5. Conflicts of interest. A lawyer cannot ethically represent both sides where there is a dispute, or a potential dispute, unless all parties agree. A lawyer must ethically do his or her best for the client. A lawyer is not a judge deciding what is "fair and reasonable". A lawyer normally is an advocate, out to protect his or her client at the expense of the other party, if necessary. For this reason, a lawyer cannot represent both a husband and wife in a divorce or represent every shareholder and also represent the corporation, or represent each partner and also represent the partnership. The lawyer must steer clear of even potential conflicts of interest, such as two people in a criminal case where one may have to testify against the other at a later time. Representing multiple people against the same defendant in an accident or collection case may be unethical where the defendant won't have the ability to pay everybody and a decision concerning who gets what must be made.

On the other hand, we must be practical. The American public can't afford to go out and hire a lawyer for every person on every nickel-and-dime deal. Therefore, it is normal and customary in some situations for a lawyer to, in effect, represent multiple people with actual or potential conflicts of interests in order to save legal fees and to expedite the delivery of the work, For example, we might prepare all of the corporate documents affecting the rights of the 10 shareholders instead of having 11 lawyers (one for each shareholder and another for the corporation) involved in the start-up of a small business. In these situations of potential conflicts, each person will be advised as follows:
  • That each person has a right to select his or her own lawyer.

  • To whom the firm is looking for payment of legal fees.

  • That the firm will raise questions and suggest commonly used solutions that the parties may wish to accept, reject or modify.

  • Who, if anybody, the firm would represent if there were an actual dispute at a later date.

  • That each person understands there could be a conflict of interest between that person and the other parties and that he or she is waiving the conflict.

  • That the person can, at some point, consult his or her own independent lawyer to be sure the legal position is understood before signing the final agreement or document.
All of the above should be explained to all of the parties involved and preferably in writing.

Failure to recognize and explain conflicts of interest properly is a serious ethical violation.

Normally, a lawyer will not buy something from a client or sell something to a client without sending that client to another lawyer to get independent legal advice or at the minimum of the right of that client to get independent legal advice from another lawyer before signing such an agreement. Failure to do this is a serious ethical violation.

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6. Self-dealing with clients. The relationship between a client and a lawyer is a fiduciary one.

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7. Failure to communicate with a client. Generally speaking, it is not unethical for a lawyer not to keep a client informed of what's happening on the case or not to return telephone calls promptly. These practices may be bad client relations, bad business or just plain stupid, but they are not unethical in most cases. There are a few situations where not communicating with a client could be unethical, but these situations usually involve the attorney's hiding something from the client. A lawyer must act as a fiduciary toward a client and cannot lie to, or hide things from, the client. In these rare situations, failure to communicate could be unethical.

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8. Extortion. Occasionally the other party in a dispute has committed a criminal act either before, during or after the act in dispute between the parties. (Employee embezzlement is common, but other examples are income tax evasion or violation of some licensing law.) The client wants to use the lawyer to threaten to expose the person to authorities or police the person does what the client wants (typically to make restitution or sign documents.)

If the lawyer did what the client wanted done it might be unethical in some states, but it would be a crime in most states. The crime would be the crime of extortion. (Generally, extortion is the threat of criminal prosecution unless the other side pays the consideration of doing what the client wants done.)

Usually, a good lawyer will skillfully handle the situation by saying something like "My client (we) will pursue all legal remedies," or "My client (we) will take all steps available under the law." Our lawyers will not knowingly write a letter in such a way as to commit extortion.

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9. Pretending to have special influence over a judge or government official. It is usually unethical for a lawyer to state expressly or to hint that she or he has a special influence over a judge or government official. The lawyer is implying that the results will be determined by who the lawyer is rather than the merits of the case.

Be careful of a lawyer who expresses the ability to "fix" a case or cites some form of special influence. This lawyer is giving you open notice of being unethical. This lawyer might not be able to help you if legal skills are required to win your case.

It would be questionably ethical for a lawyer to tell you expressly how she or he and the judge play tennis or golf together or are socially close or go the same church. (Remember also that if the judge could be influenced by these factors, the other lawyer representing the other side may play more golf or tennis together or be closer socially or be more important in the church.)

It would be proper for the lawyer to state that he or she has appeared before that judge and is familiar with the kind of evidence the judge looks form or that he or she is familiar with some of the judges idiosyncrasies or prejudices in the courtroom.

The above are obviously not all of the possible ethical situations that could arise during a legal matter, but are some of the more common ones.

We, as lawyers, will never practice law unethically. We believe that, in the long run, you, the client, will best be served by ethical lawyers. We will be aggressive when it advances your case. We will give common courtesies to opposing counsel if that will not harm your case. We will never knowingly be unethical and trust that you understand that this is in your best interest.

 

 


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