TOP TEN ETHICAL ISSUES THAT IMPACT FAMILY LAW LAWYERS. Safekeeping Property 5/21/2014. To Do or Not to Do

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1 TOP TEN ETHICAL ISSUES THAT IMPACT FAMILY LAW LAWYERS To Do or Not to Do Rule 1.15 of the Minnesota Rules of Professional Conduct requires a lawyer represent a party to sake keep their property. The lawyer must deposit money provided by the client into a trust account, which cannot be commingled with funds belonging to the lawyer or law firm. The money in the trust account may only be withdrawn from the trust account within a reasonable time after the fees have been earned or entitlement to the fees has been established. 1

2 Family law lawyers will typically receive a retainer for the work they will perform. The attorney must make sure not to put the retainer into an account that contains money belonging to the law or the firm. The attorney should keep detailed records of the billings so that the client can be given an itemized statement showing that the fees have been earned. Some family law lawyers will take on work on a flat fee basis. In this situation the lawyer gets paid upfront for the work they will perform. Attorneys in family law should be very careful in this circumstance. There is the possibility of overreaching by the lawyer that may result in a fee dispute or complaint. At times family law lawyers will hold original documents or valuable personal property for clients, such as jewelry, antiques, and the like. It is highly recommended that the attorney get a safe to put this property into and make a careful itemization of the property when it is put in the safe. 2

3 Candor Toward the Tribunal Rule 3.3 of the Minnesota Rules of Professional Conduct require that a lawyer not knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement or material fact or law previously made by the lawyer to the Court. Candor Toward the Tribunal In family law parties often have different perceptions of the truth or what occurred with their children, finances and other aspects of the marriage. Advocating your client s perception of the truth is not unethical unless you know it is false. In family law cases it is good to verify what your client has told you. A wise family law attorney once said, I believe my client s, I just do not trust them. Candor Toward the Tribunal If the lawyer knows that a false statement has been made then they should take measures to correct the false statement. 3

4 Candor Toward the Tribunal The attorney must make sure to provide the Court with accurate law, even if it is adverse to their client s position. Remember that in family law there is very little that the Court does not have wide discretion to determine. If the law is adverse, try to distinguish your case. Show the Court that the decision in the prior case is not just and equitable in your client s case. Confidentiality Rule 1.6 of the Minnesota Rules of Professional Conduct requires a lawyer to not knowingly reveal information relating to the representation of a client unless the exceptions in the Rule are met. Confidentiality Confidentiality is extremely important in family law cases. Our clients often tell us their deepest and darkest secrets. It is important that the client feel comfortable telling their lawyer this information and that can only be accomplished if they know the information will remain confidential. Family law lawyers also need to protect sensitive financial documents from their client, especially once submitted to the Court or other parties. 4

5 Communication Rule 1.4 of the Minnesota Rules of Professional Conduct requires a lawyer to promptly inform the client of any decision or circumstances that require the client s informed consent. Communication Communication is extremely important in family law cases. The client needs to know what is happening and why it is happening. Family law clients are often very anxious about their proceeding do the sensitive nature of it and want to be kept apprised of what is occurring. Competence Rule 1.1 of the Minnesota Rules of Professional Conduct requires a lawyer to provide competent representation. 5

6 Competence If you have a law degree you are presumed to be competent to handle a family law case. With that being said if you do not regularly practice in the field of family law make sure to get acquainted with the procedures that are particularly to family law and the substantive law in the area. Conflict of Interest Rule 1.7 of the Minnesota Rules of Professional Conduct requires that a lawyer not get involved in a case where there is a conflict of interest. A conflict exists if the representation of one client will be directly adverse to another client; or there is significant risk the representation of one or more clients will be materially limited by the lawyers responsibilities to another client. Conflict of Interest It is highly recommended that every lawyer have a good screening system to catch conflicts when they come in the door. The lawyer should make sure to do the conflict check before they get too much information from a potential client. If you work in a firm this can be especially important where you may cause one of your partners to lose a client as a result of failing to adequately screen for conflicts. 6

7 Client with Diminished Capacity Pursuant to Rule 1.14 the family law lawyer shall maintain a normal client lawyer relationship, as far as reasonably possible, with a client who has a diminished capacity. However, if the lawyer believes the client will harm their own interests then the lawyer must take steps to protect the client. Client with Diminished Capacity Family law lawyers may have to request the appointment of a Guardian for a client if the lawyer believes the client cannot act in her or his best interests. A conservator for the assets is another option if the attorney believes the client may harm their interests. Business Transactions with Clients Rule 1.8 provides that a lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership interest, possessory or security or other pecuniary interest advers to a client unless the terms are fair and reasonable to the client, are fully disclosed in writing, the client is advised in writing of the desirability of seeking independent counsel, and the client gives informed consent. 7

8 Business Transactions with Clients Be very careful when entering into business transactions with clients. Lawyers, particularly family law lawyers, hold a very personal relationship with many of their clients. The potential for misuse of that information in a business transaction is very high. Diligence Rule 1.3 requires the attorney to act with reasonable diligence and promptness in representing a client. Diligence Diligence does not mean immediate. Take the time to consider and weigh your advice before it is given. With technology advancements it is easy to give immediate responses and client s often want the attorney to do so. Do not do so at the expense of giving good advice. 8

9 Declining or Termination Representation Rule 1.16 provides both mandatory and permissive withdrawals for lawyers. A lawyer must withdraw if continued representation of a client would violate an ethics rule or law, or the lawyer is no longer able to represent the client due to health or other reasons that impairs the lawyers ability. A lawyer may withdraw if the withdrawal does not have a material adverse effect on the interest of the client. Declining or Terminating Representation No client is worth losing your license over. If you have any concerns about the representation you should withdraw. 9