January ended recently, and many attorneys just submitted their MCLE compliance reports. Before 2022 steamrolls into summer, here are some risk management and ethical concerns for attorneys to consider or to attend to. Taking the time to review your law firm’s internal practices, technology, business goals, or conflicts considerations doesn’t need to take place at the beginning of the year; better practices encourage all attorneys and law firms to annually assess their infrastructure and statutory ethical duties.
Know your rules. When was the last time you read the California Rules of Professional Conduct (CRPC) and the Rules of the State Bar? While the CRPC has not adopted significant changes, there have been changes to the rules, such as CRPC, rule 1.1, comment 1, which includes a requirement that attorneys have a duty to keep abreast of changes in the law, including benefits and risks associated with technology. Annually refamiliarizing yourself with your ethical duties is a wise habit, because it can alert you to necessary changes to your law practice and help you comply with your ethical duties. For those in firms, better practices encourage partners or risk management counsel to remind all firm attorneys to reacquaint themselves with the rules of professional responsibility. Note: if you are licensed in several jurisdictions, you should know where you can find your rules of professional conduct there.
For all practice areas, attorneys should consider whether statutory law has changed in any way. Employment law is known for its many changes from one year to the next, requiring employment lawyers to prepare their clients for those changes. No matter your practice area, all attorneys should take some time to refresh their knowledge of changes in the statutory codes. Keeping abreast of these changes is part of your duty of competency.
Attorneys who litigate either before a tribunal or administrative proceeding should also review the California Rules of Court or Rules of Practice governing representation before an administrative matter, or a court’s local rules. Taking the time to review any changes to the rules can save an attorney from the embarrassment of failure to comply with a new rule of practice.
Certain practice areas require an attorney or litigant to use specific forms. Often the forms are relatively similar from year to year, but sometimes they can have significant changes. Filing a document using the wrong form can cause delay or even injure your client’s interests due to a rejected filing for failure to use the correct form. Some lawyers use technology that automatically updates the forms that are used in their practice, while other lawyers don’t pay for this service and opt for downloading the online forms for free instead. No matter how an attorney obtains a version of the form, it’s most important that the form is current.
Are your contracts up to date? Another annual practice is to review and, if necessary, update your attorney-client agreement templates. Remember, an attorney-client agreement is a road map for the attorney-client relationship. The contract not only informs your client of the costs and scope of the relationship — it can also protect the attorney’s or firm’s interests, because a well-written attorney-client agreement will include expectations of the client’s communication, payment of bills, and the attorney’s ability to withdraw from a matter. The attorney-client agreement is as important to the client as it is to the attorney. Anecdotally, I have spoken to many clients about their engagement letters, noting that a clause was not in compliance with the CRPC, and many a client informed me that they hadn’t read their engagement letter since initially drafting it five, ten, or even fifteen years ago. The issues with their engagement letters didn’t present themselves until the attorney was in a fee dispute or facing a State Bar investigation.
Along with your engagement letter, it’s wise to review all “welcome letters” to be sure that the information is current. This recommendation may seem like a no-brainer, but outdated information has a funny way of remaining in files and other templates. Additionally, welcome letters may no longer reflect the tone that you wish to convey to your new clients. Updating welcome letters, closing letters, or other form letters is a good habit, as these letters often convey your firm’s business goals.
Other documents that should be regularly updated are any template documents that you may require your client to sign. This can be arbitration documents, evidence preservation notices, third-party payor agreements, or conflicts waivers. Ideally, these template documents are updated regularly and can be easily tailored to a client’s specific needs. Some of these documents may have started from an online template that you modified for your firm. Again, an attorney should review these documents and decide whether the document conveys their intended goals.
Finally, this list of recommedations is not exhaustive. While this piece advocates for an attorney to take action on the above list annually, this doesn’t have to happen in a single month or be conducted by a single individual, solos excluded. This list is simply meant to be a starting point for a law firm’s annual compliance review. Goals can be spread out throughout a calendar year but completed annually.
Mary Grace Guzmán of Guzmán Legal Solutions advises lawyers, law firms, and law students on their professional responsibilities and risk management needs. She also teaches legal ethics and professional responsibility at JFK Law School. She works with lawyers and law firms regarding legal ethics issues such as conflict of interest issues, fee disputes, and advises lawyers and law firms as outside ethics counsel to manage risk. Ms. Guzmán recognizes that a lawyer’s or law firm’s needs are best met by preventing legal ethical issues before they arise or managing an ethical issue once identified.