Ethics in Brief

Ethics in Brief is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association for SDCBA members.

The Questions that Really Make Me Sweat

Sometimes, students who are a mere licensing exam away from becoming attorneys ask me terrifying questions.  These questions are seldom about the substantive law or about how many practice exams to take before the Bar Exam.  They’re questions like, “Professor, I’m thinking of hanging out my own shingle once I pass the Bar.  What do you think?”

Now, I remember how difficult it was to find a job after graduation.  I spent nights agonizing over the fact that I could either pay my rent or my student loans, but not both.  I was desperate for work (and money).  What worries me, though, isn’t the financial situation this fledgling attorney will face.  I am concerned that lean economic times might create the potential for serious legal ethics blunders.  Will the temptation of the almighty dollar ensnare my student when lucrative, but ethically untenable, opportunities present themselves?

I can see it: my student passes the Bar Exam, sets up shop, and in walks trouble.  “Remember me, your old friend Frank?  Set up an LLC for me, wouldja?  Nothing complicated.  Standard operating agreement.  My investor has MEGA BUCKS.  Don’t need a fancy engagement agreement, either – we’re good friends.  Don’t worry; you’ll get paid.” 

Will my student – now attorney – briefly consult practice guides, or “borrow” something from another attorney, and put his name, shiny new bar number, and reputation on a boilerplate document?  Will he recognize that if he doesn’t know enough about forming an LLC, he may run afoul of Rule 3-110 (Failing to Act Competently)?  Will he sit down and really analyze who his client is?  Is it Frank?  Mr. Megabucks?  The LLC?  Some combination thereof?  Will my student remember to memorialize and communicate, in writing, this analysis (3-500, Communication)?  Will he remember that the contract for services must be in writing because his client’s expenses will likely exceed $1,000 (Business and Professions Code section 6148)?  And how much, exactly, is Mr. Megabucks – or Frank? – or the LLC? – paying?  Does this trigger concerns under 4-200 (Fees for Legal Services)?

And, oh my goodness, this is just the tip of the iceberg.

If Frank and Mr. Megabucks have a big falling out and the inevitable finger-pointing furor begins, will my student be caught in the crossfire?  Did he fall into the trap of overlooking his ethical obligations when helping a friend with a casual request?  Might the allure of a big payday cost him his license and reputation?

So, what do I tell my student, who wants my opinion about his career ambitions?  I say no matter what, his ethical compass must be his guide.  That he should purchase a California Practice Guide on Professional Responsibility if nothing else.  That ethical pitfalls seem innocuous at first, so he must be wary.  That he should attend programs presented by the SDCBA Legal Ethics Committee, which discussed these very scenarios (and more!) with a lively, interactive audience just last month.  And that sometimes the best money he will make is the case he doesn’t take.

Jennifer Gilman, Interim Director of Bar Programs, California Western School of Law

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**