Ethics and Professionalism: A New Look. Let’s See if We Can Avoid Boring!

by Robert S. Bernstein, Esq.

*This article previously appeared in the January/February 2012 issue of Commercial Law World, the official publication of the Commercial Law League of America.

I had the pleasure of conducting an ethics discussion with about 100 League members during the Friday of the New York meeting in November. The circumstances were unusual, but it was an opportune time to try out a few ideas on a sample audience. It wasn’t a particularly clever test, but it did tell me some things about the crowd and our members. From that, I developed a series of ideas for this column in Commercial Law World on the (usually) boring bookend subjects of ethics and professionalism…

Okay, for the other half of you still with me, let me clarify! I don’t expect this to be a typical, dry, set of instructions about how to be an honest lawyer or to respect your peers, clients and Courts. It’ll be a little different. It will be some of my experiences being around the collection and bankruptcy practices for a few years. It will include some of the things I’ve come across in my time as Chair of the CLLA and my local Bar’s Professional Ethics Committees. It will deal with some modern, real-world issues. We might even deal with some of my ethics violations. Wow! That got your attention, didn’t it? Actually, we’ll look at some examples, some practical issues and, most importantly, things that you and other members want to talk about. Generally, we’ll talk about the ABA Model Rules of Professional Conduct, adopted in every state in one form or another. Always be sure to check the rules that apply to you. So, here we go…

Sam, the lawyer, was proud that his daughter, Sarah, recently passed the bar and accepted his offer to work in his small firm. One evening, on their drive home, he said “I’ve taught you a lot about the business of law and about doing a good job for clients.” “Something happened today that gives me the opportunity to teach you about ethics.” “This afternoon,” he continued, “Mrs. Jones came in to pay her $500 bill. She gave me the money, I gave her a receipt and she left. After she left, I counted the money and found SIX one hundred dollar bills, not FIVE. Are you seeing the ethics issue?” Sam asked. “Do I or do I not tell my partner?”

This little story says a great deal about legal and business ethics. Let’s start with the legal ethics sides. How many Rules are implicated? Let’s see: 1.5, 1.15, 5.2, 8.3?

Rule 1.5 says that we cannot charge a client an excessive fee.
Rule 1.15 requires safekeeping of client property.
Rule 5.2 requires that subordinate lawyers can’t just “follow orders.”
Rule 8.3 requires that lawyers report misconduct of other lawyers.

In that short story and in those four Rules, there is a wealth of guidance (and risk) for lawyers.

CLLA agency and other non-lawyer readers need to be cognizant of the issues this column will address, not only because these folks deal with (and sometimes supervise) lawyers, but also because these Rule generally codify “doing the right thing.” And doing the right thing is not a bad thing for anyone.

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