Professional Liability Matters would have considerably less content to discuss but for professionals who break seemingly obvious rules. For example, some would think that it goes without saying that a professional can’t lie to clients. Yet, a recent New Jersey ethics decision is proof positive that professionals don’t always follow the rules, even the easy ones.
In the underlying dispute, an attorney represented a property management company on the wrong end of a $15,000 judgment. During a television interview, a co-owner of the management company was asked why the judgment had not been paid. Allegedly based on information provided by his attorney, the co-owner responded that the case was on appeal. The interviewer promptly corrected the co-owner, since no appeal had been filed.
The co-owner filed an ethics grievance alleging the television report gave the impression he was a liar, and that the information provided by his attorney was a factor in the now-defunct company’s demise.
Indeed, before and after the interview, the attorney e-mailed the co-owner, stating the following:
- The attorney wanted to start the appeal “that day or the next”;
- he was checking with the court about the status of the appeal;
- he was “trying to figure this all out” and determine if the appeal had been denied; and
- he was drafting a motion to reconsider if the appeal was denied.
However, the disciplinary review board found that the attorney never pursued any appeal or motion for relief.
The attorney stipulated to violations of ethics rules dealing with gross neglect, lack of diligence, failure to communicate, conduct involving dishonesty and others. He was issued a formal reprimand. How to avoid a similar fate? Make sure to keep these ethics rules in mind when handling clients’ cases:
- Nix the negligence. The attorney in this case was sanctioned because he neglected to take an action that his client requested, and to diligently pursue a remedy requested by his client. Such conduct may violate Model Rule 1.1, as it constituted a lack of competence that was “grossly negligent”, as well as Model Rule 1.3, which requires an attorney to act with reasonable diligence and promptness in representing a client.
- Communicate candidly. The attorney here failed to communicate to his client that the appeal was not filed, violating Rule 1.4, which requires an attorney to keep the client reasonably informed about the status of the matter.
- End it expertly. The attorney failed to appropriately terminate the relationship with his client. Make sure you clearly communicate in writing that the scope of your representation has ended, and check out our previous post on best practices for ending attorney-client relationships.
- Tell the truth. Here, the attorney told his client one thing, and did another. Rule 8.4 is a big one – our profession may not engage in conduct involving dishonesty, fraud, deceit or misrepresentation. Be honest with your clients – even if it means telling them something unpleasant or admitting your own error. In the long run, your business will be better for it.