1972 Rider Lewis was admitted to the
The California Supreme Court concluded that Lewis’s ethical
violations were the direct or indirect result of his “complete lack
of familiarity with probate law.”
Although the Court concluded Lewis violated the
Current ethics rules tend to be less demanding in their treatment of new lawyer competency. For example, the comment to Minnesota’s competency rule expressly states that special training or prior experience is not required and that a lawyer can undertake a legal matter in a “wholly novel” field of law through “necessary study” or by associating with experienced counsel.2 However, to the extent the California rule was unduly onerous, current ethics rules likely understate new lawyer competency requirements. Courts continue to demand a level of basic legal knowledge regardless of the lawyer’s experience and impose discipline or other consequences when that knowledge is lacking.3 Examples include a lawyer’s lack of understanding of the difference between a secured and unsecured creditor in a bankruptcy representation, erroneously believing that the medical malpractice statute of limitations would not run until after the lawyer had obtained an opinion from the client’s treating physician, failing to research how to perfect a security interest in a liquor license, failing to enforce a judgment or require the posting of a supersedeas bond during the pendency of a divorce appeal, and repeatedly making improper objections during a federal trial.4
More often than not, competency problems (as well as ethical
issues) for new lawyers stem from their inability to identify o
Limits. Some cases
simply demand greater competence or experience than a new lawyer practicing
alone can reasonably provide. Even
where extensive research and self-education efforts will enable the
new lawyer to attain the necessary competency, the question remains
whether 100 percent of the time is properly billable to a client.5 Other cases may require financial or
other resources beyond what a new lawyer can provide. For example, a newly admitted Minnesota lawyer
was suspended afte
Take Every Case. Resist
the financial temptation to take just any case.
Be selective, both in terms of what you substantively can handle
as a new lawyer and also the type of client.
The post 9/11 changes to immigration law and procedures have
generated significant demand for immigration counsel.
As a result, disciplinary agencies across the nation have experienced
a spike in ethics complaints about the incompetence of lawyers handling
immigration cases. In
Immigration law procedures are regimented and swift. The consequences of procedural miscues can result in Draconian client consequences. Lawyers unfamiliar with immigration procedures should not dabble in this area of law. New lawyers desirous of entering immigration practice would do well to associate with experienced counsel and gain membership in the American Immigration Lawyers Association (AILA). See www.aila.org.
Where multiple attorneys have already represented the
client, it is prudent to obtain client authorization to talk to the
previous lawyers before accepting representation.
Client unwillingness to provide such a waiver deserves furthe
Be cautious of creating unrealistic client expectations or overselling your representation. Clients with unrealistic expectations are less rational when considering settlement offers, lodge more objections about fees, and are more likely to file ethics complaints. Competent representation includes being frank when the merit of the client’s claim or the chances of success are marginal. A successful small firm lawyer once commented, “Two of my best clients are persons whom I advised in the very first representation that it was not worth it to pursue their claims.”
Your Licensing Obligations.
Personal obligations can also have law license consequences. Countless lawyers have been suspended over the years for failure to file income or employee withholding tax returns. Within the last decade, the obligation to pay child support or maintenance has become a basis for license revocation for all professions, including lawyers.7
Learn How to Handle Client Funds. Solo lawyers can hardly conduct business without a trust account. Learn the trust account record-keeping requirements. Educational materials, including sample trust account records and a manual on electronic maintenance of trust account records are available on the Lawyers Board Web site, www.courts.state.mn.us/lprb. Familiarize yourself with what goes into the trust account and what does not. Do not leave earned fees in the trust account for extended periods unless the fees are in dispute. Do not disburse client funds until the corresponding deposit has been made. Refrain from disbursing your earned fees from the trust account directly to personal or law office creditors; transfer earned fees to your office account before making such disbursements.
Be Forthright About Mistakes. Despite best efforts, lawyers still make mistakes and commit ethical violations. Rarely are the consequences as drastic or dire as most lawyers imagine. At the same time, the fallout is always far greater when the lawyer compounds the mistake or violation with dishonesty. Forthright explanations and cooperation can mitigate the severity of disciplinary sanctions, whereas lack of candor and cooperation always increase the penalties.
Avoid Isolation. Good solo practitioners may practice law
alone, but they do not isolate themselves from other lawyers. Peer pressure and the acknowledgment of other
lawyers or professionals is a critical component of professional development. Even criticism from those we respect can play
a large role in developing a positive professional perspective. Recently,
Beyond assistance with substantive law and procedure,
the Minnesota Lawyers Assistance Program offers
free, confidential help to lawyers affected by chemical abuse, depression,
stress and other life-related problems. See
www.mnlcl.org. The MSBA’s Life and the Law Committee works closely
with the Lawyers Assistance Program to stimulate discussion and provide
resources to the legal community regarding caree
Ethical resources and assistance are also available through
the Lawyers Professional Responsibility Board and Office of Lawyers
Professional Responsibility (OLPR). The Lawyers Board Web site, www.courts.state.mn.us/lprb, contains rules, opinions, articles, and
other materials about
As a solo practitioner you may practice law by yourself, but the availability of these resources demonstrates that you need not be isolated and are never alone. c
2. Comment to
3. See Sabis & Webert, “Understanding the “Knowledge” Requirement of Attorney Competence: A Roadmap for Novice Attorneys,” 15 Geo. J. Leg. Ethics 915 (2002), and the cases cited therein including those in footnote 4, below.
4. In re Farmer,
950 P.2d 713 (Kan. 1997)( bankruptcy representation);
In re Moore, 494 S.E.2d 804
(S.C. 1997)(medical malpractice statute of limitations); Baird
v. Pace, 752 P.2d 507 (Ariz. Ct. App. 1987)(perfecting security interest; legal
malpractice case); In re Gallegos,
723 P.2d 967 (N.M. 1986)(failure to enforce judgment, require bond
during pendency of divorce appeal); In re Dempsey, 632 F.Supp. 908
5. See e.g, In re Fordham, 668 N.E.2d 816 (
6. In re
KENNETH L. JORGENSEN is director of the Office
of Lawyers Professional Responsibility.
He has served the cause of lawyers' self-regulation in