10 Commandments for Attorneys: Professional Responsibility

Professional conduct should be a priority for any professional in any industry, but especially for attorneys. Strict adherence to professional conduct guidelines will not only protect a firm from legal action, but will reflect well to judges, clients, and prospects.
The State Bar of California has five chapters of professional conduct rules for California attorneys, but there are 10 commandments that especially top the list.

1. Thou shalt not lie about completing your MCLE.

Attorneys in California are required to complete 25 hours of continuing education every three years. The state bar must approve providers of this Minimum Continuing Legal Education (MCLE). Attorneys must certify completion of the requirement to the state bar. And in the event the attorney is randomly audited, they must submit proof of completing their continuing education activities to the state bar.
With the many flexible options for obtaining these hours (online courses, attending and teaching classes, publishing legal materials, and even self-assessment tests), there is no excuse for fabrication. There are even free MCLE resources for pro bono attorneys.

2. Thou shalt not commingle funds with your client trust funds.

All funds received or held for clients must be deposited in a separate Trust or Client’s Funds account. If a portion of the funds in the account will be paid to the attorney for fees, that amount must be withdrawn as soon as possible, and clear and detailed records must be kept of all transactions.
Trust fund abuse is the most common source of attorney investigation and discipline. Many continuing legal education courses are offered to train attorneys on this very function. Furthermore, you will want to work with banks and financial officers who also have experience handling these accounts and standard protocol.

3. Thou shalt not pad your billing.

Don’t guess or exaggerate on your billing. Padding has many origins—from the pressure to create revenue to an innocent mistake based on bad record keeping. Here are four ways to ensure your billing stays lean:

  • Don’t be lazy and submit billing without detail or with very general terms like, “reviewing documents.”
  • Use case management software that includes timers and time keeping virtual assistants.
  • Complete your invoices in a timely manner. Submit your time worked on client matters daily, review entries weekly, and invoice monthly. If you attempt to invoice quarterly, it is likely you will also expand your review to monthly, and your billing entries weekly. This creates opportunity for you to lose billable hours as well as tack on additional hours. Waiting to bill just increases the likelihood that your memory will get foggy and some guesswork may creep into your billing.
  • When billing, check if that time can be otherwise verified. For example, does the time billed for a deposition match what was on your calendar?
  • If you bill clients for any outside experts or external services, ensure that the amounts match.

4. Thou shalt not take possession of, or destroy, evidence.

You always want to act in your client’s best interest, but there are some arenas not protected by attorney-client confidentiality. Evidence is one of them. Rule 3.4 of the ABA Model Rules of Professional Conduct dictates that an attorney must not, “unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value.” This rule goes on to state that an attorney must not direct another person to do the same thing.

5. Thou shalt not breach confidentiality of communications with your client.

Attorney-client confidentiality is necessary in order for you and your client to communicate freely. This confidentiality includes not only your discussions with your client, but everything relating to their representation—regardless of the source. Violating this without informed consent from your client can lead to serious penalties. The only exception is a breach of confidentiality regarding a potential crime, that the member reasonably believes is likely to result in death of, or substantial bodily harm to, an individual.”

6. Thou shalt not solicit new clients in-person.

Soliciting new clients, either face to face or over the phone, is prohibited, unless you have a prior relationship—either personal or professional.  Solicitations to former or present clients in the discharge of professional duties, however, is not prohibited.

7. Thou shalt not arrive in court late, drunk, or unprepared.

Clients depend on you to be at your best—timely, capable, and prepared. Being in court visibly drunk is a violation of your ethical responsibility to act in your clients’ best interest. You would think that appearing in court drunk would be extraordinarily rare, but it does occur—even in murder trials.
Substance abuse is a very real consequence of the legal profession. Fortunately, attorneys do not have to face this struggle on their own. The California State Bar offers the Lawyer’s Assistance Program to provide confidential rehabilitation support for attorneys dealing with substance abuse or mental illness. Professional and peer assistance is also available to attorneys suffering from stress, burnout, depression, or chemical dependency. 877-LAP 4 HELP (877-527-4435).
Even if your bad behavior is a lesser offense, such as running late or not having reviewed the case materials, your clients deserve better. Unprofessional behavior puts them at unnecessary risk, and wastes valuable time and money.

8. Thou shalt not submit briefing without cite-checking.

Don’t let excitement or pride regarding your argument get in the way of accuracy. Being too focused on your own case without double-checking the cases that support it can make you look foolish and unprofessional. Be sure to include time for review.

  • Check the local rules for specific formatting, font, and page-limit requirements for all submissions.
  • Carefully check all case law, statutes, exhibits, and other references in your brief before submitting.
  • Make sure your citation formatting is consistent.
  • Check any quotations for typos.

Review by second set of eyes is always a good idea. An accurate brief is best for both your clients and your practice.

9. Thou shalt not have sexual relations with your client.

Any questions? As obvious as this main seem, it does happen on a regular basis.
Two exceptions to this rule include relations between an attorney and their spouse, or a consensual relationship that began before the attorney-client relationship did.

10. Thou shalt not extort an opposing party.

It should be obvious that it is unethical and illegal to extort your opposing party in the simplest sense of the term extortion. However, within the normal litigation process, certain types of demands are considered “impermissible threats,” and can subject the demander to accusations of civil extortion. This could be through threatening the opposition with reporting an act as a crime or even by failing a claim with a state licensing agency.
Attempted extortion receives the same undesirable attention as active extortion. Make sure that your demands can not be interpreted as using force or fear.

Professional Conduct is Mandatory

Professional conduct should be something that every attorney strives to exemplify—and not just to stay out of trouble. Your clients will benefit, which means your practice will benefit. Sometimes circumstances seem to create gray areas where there are none, so stay on the right side of these big 10 no matter what.