Remember The Golden Rule
On January 25, 2020, just before the pandemic, I gave a 90-minute live presentation as part of the Mandatory Course on the D.C. Rules of Professional Conduct and D.C. Practice. If you practice law in D.C., you will recall this course is administered by the D.C. Bar; and as a requirement of the D.C. Court of Appeals it is to be completed after swearing-in and within 12 months of admission.
For the first 45 minutes or so, I focused on the disciplinary system in D.C. I explained the structure of the Office of Disciplinary Counsel, and how my and others’ roles within the ODC worked in conjunction with the D.C. Board on Professional Responsibility. I also described the process of how complaints were filed, investigated, and prosecuted and I discussed the range of sanctions members of the D.C. Bar could get for violating one or more of the D.C. Rules of Professional Conduct.
In the second half of my presentation, I described examples of some of the specific Rule violations that most frequently resulted in complaints against D.C. licensed attorneys: breach of client confidentiality, Rule 1.6; different forms of client neglect, Rules 1.1, 1.3, and 1.4; the requirement of safe-keeping unearned client funds, Rule 1.15, and the what constitutes misappropriation of the same. I also discussed the sorts of actions that constitute misconduct under Rule 8.4.
When I reached my conclusion, I decided to mention a non-enumerated rule, the violation of which seemed to me to be the basis of the majority of client-generated complaints. After investigating hundreds of complaints, and discussing and reading about many more, it struck me that most disciplinary complaints be avoided altogether by adherence to this non-enumerated, simple rule known to everyone—the Golden Rule.
Every practicing attorney has to withstand the slings and arrows thrown at them in both their professional and personal lives. Attorneys should periodically take a moment to reflect on how they typically react to seemingly untenable situations, and how they deal with their clients in those situations. It is critical in those difficult times that the attorney pause to consider their clients and how she or he would want to be treated by their attorney regardless of what the attorney is going through.
You might be in the midst of another more complicated case, or you might be busy with important personal matters; however, you must promptly return even the most vexing client phone messages or emails, even if to clearly explain why you cannot fully address their concerns immediately. . . Think of how you would feel if you were really worried about your case and your attorney was not returning your call.
Envision the doctor with the good bed-side manner, and then the one without it. Who is the patient more likely to report to the medical board if something goes awry?
Best practices dictate taking the extra time to better explain a legal issue your client doesn’t seem to understand. Don’t make them feel ignorant, work with your client in the spirit of collaboration (after all, you are in the case together as a team). Take the extra minute, or hour, if need be, to walk your client through the available legal options their case presents. Even if you are rushed and want to cut to the chase—even if you believe one of the options is clearly the best—ultimately, your client will be better represented, and feel more confident in you, if you take the time to help them make an informed decision.
It’s often said that a lawyer is usually only as good as his or her particular case. Maybe you are lucky or smart enough to only take good cases. But it is inevitable that sometime, somehow, something will go wrong in one of your cases: a witness will turn on you, the jury will not see the merit of your argument, or the judge will not agree with your well-reasoned interpretation of the law—and you will lose the case. Worse still, there is going to be a time when your work is not going to meet your client’s expectations, or you will have failed to predict a potential bad outcome that occurred despite your best efforts.
Envision the doctor with the good bed-side manner, and then the one without it. Who is the patient more likely to report to the medical board if a medical procedure goes awry? If your client sees that you have empathy for their situation, that you are truly in their corner, and that you are doing your best, they are likely to be more understanding if things don’t go their way.
Most docketed bar complaints are ultimately dismissed; clear and convincing evidence of the violation of a rule of professional conduct is a significant burden of proof to meet. However, a complaint about you to the bar (even if it is dismissed in the end) can take months to resolve and will weigh on your conscience, even if you don’t believe it will. Most of the conduct complained about doesn’t rise to the level of a violation of any of the Rules of Professional Conduct. However, nearly every attorney who gets a complaint knows (if they are being honest with themselves) that they somehow offended their client’s sensibilities, and that is the main reason they got the complaint.
While it’s critical to know the Rules, think also about this unwritten practical rule. Consider how much you appreciate being treated with empathy, decency and respect – and then do the same for others, especially your clients. Remember the Golden Rule.
The author, Clinton Shaw, currently practices ethics law in D.C. and Virginia
He is also a former Assistant Disciplinary Counsel.