The purpose of this article is to discuss some ethical violations that apply to attorneys. The state of Utah, as does every state, has rules of professional responsibility. What they are is codified rules about what an attorney can or can’t do. There are just some things personal injury lawyers can’t do. If an attorney breaches or is in violation of one of those rules, they could be subject to a bar complaint and discipline from the state bar. This discipline could be up to and including disbarment, being put on suspension, losing their license, or facing criminal charges.
5 THINGS PERSONAL INJURY LAWYERS CAN’T DO
TAKE ON A CASE WITH A CONFLICT OF INTEREST
One of the things personal injury lawyers can’t do is take a case with conflicts of interest. According to the American Bar Association a conflict of interest exists “if there is a substantial risk that the lawyer’s representation of the client would be materially and adversely affected by the lawyer’s own interests or by the lawyer’s duties to another current client, a former client, or a third person.” The key is whether the lawyer’s exercise of independent professional judgment is likely to be unduly influenced by other interests.
It is very important that an attorney’s goals and incentives are in line with the clients. When an attorney takes the initial phone call from a potential client, the attorney needs to screen that call for potential conflicts of interest. What that means is they compare that client with current and former clients to make sure that they don’t have an interest that’s adverse to that of this new client. Certain rules apply to former clients and more stringent rules apply in this type of situation with current cases and new clients. The reason for these detailed, specific rules is to provide specific guidelines of what an attorney can and can’t do while staying within the parameters of the law when dealing with conflict of interest.
Clients need to be able to trust that their attorney is making crucial decisions and acting in their best interest. You want the client to be able to consider that the attorney is an extension of themselves handling the case. They are hired because they will give the case personal attention and they know the law. They expect that they will be open and honest and rely on the attorneys counsel and not have to second guess whether the attorney is just it in for himself or for some other client.
An example of conflict of interest would be if a client was seeking damage from a medical provider because of a mistake the doctor made in surgery that caused serious complications for the client. While discussing the matter during an initial consultation with an attorney the client disclosed that name of the physician. At this time, the attorney realizes that he is currently defending that same doctor in another case. This would be conflict of interest and the attorney could not accept this new case.
Conflict of interest also needs to be avoided within a law firm. Meaning two lawyers at the same firm could not represent opposing sides. Another example of conflict of interest would be an attorney acting as a witness in a case where he is also representing a client. An attorney is also not allowed to be involved in any business transactions with a client.
A client that is shopping for an attorney can ask questions of the lawyer during the initial consultation that will reassure them that there is no conflict of interest. Questions such as , “Do you have a conflict of interest with my case? and Does your law firm use software to monitor your conflict of interest exposure?” Sometimes it is difficult for an attorney to recall all prior clients and there has been a software developed now that aids them in determining any potential conflicts within their firm.
Under the Model Rules of the ABA, an attorney could still represent a client as long as the client is aware of the potential conflict of interest and the client signs a written consent to the representation. In addition the lawyer cannot be representing opposing sides of a case at the same time. It also has to be reasonable to believe that the attorney can handle both cases at the same time. However, even though there are exceptions to handle conflict of interest circumstances, most attorneys will try to avoid potential conflicts because if something goes wrong it could cause malpractice litigation against the attorney and/or the firm. They would not want to knowingly risk their reputations because of a conflict of interest.
LOAN CLIENT’S MONEY
Another of the things personal injury lawyers can’t do is loan clients money. Personal Injury Attorneys are allowed to front the costs of litigation and litigate cases on a contingency fee basis. This means that no fees will be collected by the attorney unless and until the case has reached a settlement and the client receives an award. but as far as loaning the client money or paying a bill for them before the case is settled, that is against the law.
Sometimes during the course of a case, particularly in the personal injury field, you may have a client who is out of work and has medical bills mounting and is short on cash. As discussed in another article, the third party liability carrier will only pay out once at the end of the case so sometimes to address that gap in the meantime in may be tempting for an attorney to help a client. It might seem harmless to give them loans or to pay bills for them out of the attorney’s pocket or things of that nature. Those things are ethical violations that are not allowed. The attorney can help the client to find someone that can provide similar services if necessary and that is okay to do. If a short term loan becomes the choice of the client, they should be aware that those types of loans usually carry very high interest rates and extreme penalties if payments are late. The decision to take out loans and the repayment of them are the sole responsibility of the client.
In situations where a medical provider is growing uncomfortable with a rising balance on a patient’s account but the patient still needs more treatment, the attorney can offer an attorney lien. No transfer of money takes place with the agreement, rather the attorney provides an agreement to the doctor stating that as soon as the settlement comes in, the doctor is in position to collect and will receive payment. This reassures the doctor and the patient can still receive the needed medical care. When the case settles if the award is not enough to pay all of the medical bills, the balance of the bills are still the client’s responsibility.
The third of the things personal injury lawyers can’t do is guarantee success. On a personal injury case where it is taken on a contingency fee basis, where nothing has materialized, and it’s a civil litigation matter, the attorney’s are not allowed to say something like “I guarantee 100% that you will win this case.” That would be a very careless comment to make because nothing in the field of law is a guarantee. There are always potential risks. Even if the attorney is confident that the case is strong, an explicit guarantee could be an ethical violation. An honest, experienced attorney would not make this claim. There are always unknown factors and circumstances that impact the case in many ways. Of course, a good attorney will do their very best to win their client’s case, but they cannot predict the future. Personal injury attorney’s often operate on a contingency basis meaning that they only get paid if and when the case is won. Rest assured they do not want to take on cases where winning is unlikely. They would much rather advise the client that their case is weak and save everyone a lot of stress, time and money. The lawyer should be candid with prospective clients and advise them of what they are up against and be honest and upfront about the attorney’s own credentials and prior experience in cases such as theirs. Armed with this information the client can make a decision about hiring the attorney or not.
DIVULGE PRIVATE INFORMATION
The fourth of the things personal injury lawyers can’t do is divulge private information. This may be the very most important thing that a personal injury attorney can’t do. It is very important that the client feels like they can be open and honest with their attorney and their trust will not be betrayed. Also that they won’t have secrets divulged. A personal injury attorney or any attorney for that matter, when they engage in a conversation with a current client or a potential client that is seeking legal services and that is the reason for the conversation with the attorney, the attorney can not divulge that information to a third party.
There are exceptions to that rule. For instance when there are other people in the room then that privilege may be potentially destroyed. But any private communications between attorney and client must remain private. Obviously, just like with most any rule there are exceptions to that rule but in large part it is a pretty secure rule that what you tell your attorney is not going to get divulged. This is referred to as client privilege. That’s because it is the client’s privilege to divulge conversations between them and their attorney but the attorney cannot reveal anything discussed in that same conversation unless the client provides written consent. This law allows the client to divulge all details and circumstance to the attorney so they can provide adequate and fitting legal representation. It also prevents the attorney from being called as a witness against his own client.
GO AGAINST THE INTEREST OF THE CLIENT
The last of the things personal injury lawyers can’t do, that we will address in this article, is that an attorney can’t misappropriate the client funds. It is a big deal to be a steward over the money that comes in for a client. It is common for a personal attorney to handle all of the funds from a settlement. Quite often a final settlement comes in as one check and out of that amount, the attorney goes through and pays medical bills that are outstanding so that the client is not sent to collections, resolves the attorney liens, pays the legal fees and typically a net check will be cut to the client. That is their money to keep after the other things have been resolved. The goal of a good personal injury attorney is to get that net settlement to as large of an amount as possible that is fair and reasonable under Utah law.
Unfortunately, there have been incidents in the past of attorneys misusing a settlement fund by not giving the client their due amount or not dispersing the funds in a timely manner. These cases are extremely rare and the penalties of this type of behavior would be severe. Handling money is a big duty and it’s something that attorneys take very seriously. Wise attorneys complete all of the necessary transactions at the close of a settlement as quickly as possible and get the remaining amount into their client’s possession in a short amount of time.
The legal profession has many laws and rules in place to protect clients and attorney’s from situations that could cause potential harm or affect the outcome of a case. The relationship between a client and attorney should be based on honesty and integrity. This type of relationship allows for optimum communication and also allows the attorney to do his best to represent the client’s case. A client should feel comfortable asking any questions of their attorney and receiving answers that are acceptable and clear. The laws regarding the items discussed in this article may vary from state to state and your attorney will be able to address any concerns or questions that you may have.