The Southeastern Center for Quality of Life Adjustment, Inc.

Presents

ETHICS: MORE THAN A LINE IN THE SAND

BY

JIM EARLY
Law Office of Jim Early
Winston-Salem, NC 

 

Speaker: 

JIM EARLY is a practicing attorney in Winston-Salem, NC.  His principal areas of practice are Business Law, Business Litigation, Plaintiff Personal Injury, Plaintiff Medical Malpractice and Plaintiff Employment Issues.  He is a member of the American Bar Association, the North Carolina State Bar and the North Carolina Bar Association serving on the Lawyer Effectiveness and Quality of Life Committee, the Practical Skills Curriculum Committee and Special Curriculum Committee.  Mr. Early is also a member of the North Carolina Academy of Trial Lawyers; American Trial Lawyers Association and the Forsyth County Bar.  He is a Certified Mediator and the author of Need A Vacation?  Make It A Long One, North Carolina Lawyer/November/December 1995, Are You Happy Practicing law?  North Carolina Lawyers Weekly/October 21, 1996, "If It Ain't Broke Don't Fix It" Isn't Enough, North Carolina Lawyers Weekly/January 13, 1997, You've Been At It For 20 Years, Now What?, North Carolina Lawyer/January/February 1997, and Do Solo Practitioners (Blonde or Not) Have More Fun?  He received his B.A. degree from Wake Forest College and his J. D. degree from Wake Forest University School of Law.

Overview:

The program is designed to help lawyers be successful in practicing law no matter what their working environment and to help them change their working environment, where appropriate, to make the practice of law a better professional and personal experience.  It will go beyond traditional continuing legal education discussion of ethics and professionalism to assist the practitioner actually in understanding and beginning to deal with those practices, habits and attitudes which can seriously affect a lawyer's competence and professionalism as well has have a negative impact on their lives outside the legal profession.  It will help the participants see the lawyer as a complete person instead of an isolated professional.

It may be necessary to implement change in work habits, management and attitudes in order to achieve professional competence, meet one's ethical obligations to the client, public and profession and still maintain a full and satisfying personal life.  Jim Early will discuss professional practices and procedures that will help lawyers in their offices and will also describe the potential consequences of failing to do so.

Program Agenda:

Part I The Nexus between Ethics/Professionalism.  Maintaining a balance between

professional and personal areas of one's life enhances one's abilities to avoid ethical problems and deliver good representation to clients in a professional manner.          

Part II The RPC(s) We Must Live By

A review of the rules of professional conduct promulgated by your State Bar including recent updates and trends.

Part III The RPC(s) We Should Live By - The Next level

Ethics for the consummate professional.  What one does when no one is looking. Attitude makes the difference. The client will never know, but you will.

 

ETHICS:  MORE THAN A LINE IN THE SAND

For all of us who practice law, Ethics/Professionalism should be more than a line drawn in the sand.  Ethics should be more than a body of canons, rules, regulations and opinions telling us what we can't do as lawyers.  I guess there are always some, that if there were not strict rules and regulations, their greed would quickly take them out of bounds.  However, for most of the fine lawyers that I have met across this state, they would know the answer before the question was asked.  It seems only when one is bumping the envelope of honesty, civility and fair play, that one needs to carefully check the rules of professional conduct.  We are all supposed to be on speaking terms with the rules of professional conduct and the opinions rendered thereunder.  However, for most of our transactions and relationships with clients and other lawyers, we know where the boundaries are.  If we are truly honest with ourselves and our clients, work hard and treat other people like we would like to be treated, don't engage in over reaching and give value for value paid, we are very unlikely to get close to the envelope, much less bump it.

However, the aforementioned only concerns not violating rules.  That about which I am speaking, when I say that Ethics is more than a line in the sand is about attitude.  It is about caring.  It is about giving and giving back.  It is about trust.  It is about honesty on the level of what you do when no one is watching.  It is about how you live and practice your profession.

Most lawyers would not take money from the clientsí account.  Most lawyers would not intentionally overcharge a client.  Most lawyers would not sell out a client's case or position.  Yet, if one does not take care of himself or herself and subscribe to a good quality of life and live it, the constant pressures of practicing law will take their toll and in time, this lawyer will burn out.  Unfortunately, burn out does not usually coincide with retirement age, but happens some twenty to thirty years sooner.  It is at this point that lawyers find themselves sitting in their office at a desk in a "blue funk" paralyzed with the depression that goes with burn out.

As one sits day in, day out, paralyzed with depression and accomplishing very little in the form of good chargeable time, the income stream that follows production will soon dry.  A sole practitioner or a practitioner in a small firm will notice this quickly.  In a large firm, one may be able to slide until it is the end of the year and time to divide the pie.  At that time, one's partners will be very reluctant to continue to divide the pie in the same manner with one who is not producing.  If the depressed person did not have enough on their plate, with the added burden of mounting bills and reduced income, they quickly hit the wall of desperation. 

A good man, a good woman practicing law under these conditions who may never dream of breaking the law or stealing, becomes faced with desperate situations that often produce desperate solutions.  The personal injury lawyer knows that a good case that was worked on for several years is about to settle, he makes an interim loan from the clients trust account until the paperwork is completed.  The adjuster with whom he has worked and negotiated this settlement goes on vacation, gets promoted or is transferred.  Another adjuster takes over the case.  The new adjuster needs guidance from his superior.  The superior takes another look at the case and based on his new marching orders, decides the case should be tried.  The lawyer has crossed that line in the sand.  He has taken money from his clientsí account. He has no way to put it back.  If he did not have enough on his mind, he now has the prospect of a grievance being filed and disbarment.

Or he may not have taken money from the clients account, but simply sat in his office paralyzed with depression and failed to convey to his staff or his software the information necessary for the staff and software to protect him from missing a deadline.  Good staff and computers are not a panacea.  Garbage in to a computer, garbage out.  Nothing in, nothing out.  If the lawyer fails to communicate with his staff and computer and supply that information early on that will prevent the missing of a filing deadline or some other critical event, there is no way the staff or the computer can keep the lawyer from harms way.  If the lawyer did not have enough to worry about, once he has missed that deadline, he now is faced with a grievance and possibly a malpractice claim.  If he was partially paralyzed with depression before and unable to produce good work, he is now totally paralyzed, unable to work, desperate and at the edge.

The survey conducted by the N.C. Bar Association in 1991 showed that eight of every one hundred lawyers thought of committing suicide more than twice a month.  These were people who were simply burned out and had reached the edge.  Once a scenario, depicted above occurs to such person, is it any wonder they seek relief in death thinking life holds no promise? 

On a less dramatic note, the lawyer who sits at his desk pulled down by burn out and depression, does not have the energy or will to fight vigorously for his clients.  The rules of professional conduct require this.  If the lawyer is a personal injury lawyer or handles plaintiff matters and does not have the energy or will to fight, this will quickly be perceived by his adversary.  Be his adversary, insurance adjuster or another attorney, once the adversary smells the pheromone of fatigue, weariness and fear, the adversary will press harder.  The lawyer will capitulate to a lesser offer and convince his client why it should be taken.  The client receives less than he or she should have for their claim and the lawyer gets a percentage of a smaller recovery.  Both lost.  But more importantly, the lawyer breached his duty to zealously represent his client to the best of his ability.  This is not an Ethics violation for which the lawyer will probably receive a grievance, he just simply became less effective.  A continuum of this will hurt his practice and he will soon find himself with insufficient income to meet his office and personal needs.  Taking on more work is not the answer, as he does not have the time nor energy to do more work.

If the lawyer is sitting at his desk burned out and depressed and is working on projects for which he charges an hourly rate, each hour he charges to a client is an overcharge.  The client is not getting the highest and best energies and creativity and certainly is not getting an hours worth of good lawyering for an hours pay.  If the lawyer should realize his plight and charge the client for only an hour when the task took an hour and a half, the client still did not get a good hour of the lawyers time because the lawyer is no longer capable of producing a good hours work in an hour.  If the lawyer gives away a half hour for each one hour project, the lawyer cannot work enough hours to produce enough good hours without overcharging the client for the task performed.  If the lawyer continues to work more hours to make up for the lawyerís ineptness, the lawyer becomes more and more tired and the downward spiral continues.  This is a no win situation for the lawyer and the client.  It is also a breach of Ethics.  This scenario will in all probability cause the lawyer to have a grievance filed against him and it will cost the lawyer clients. Eventually, the lawyer's business will dry up and he will probably never understand why because he was working so hard.

If one does not take good care of one's self and take all the steps necessary to maintain good balance between one's professional and personal life, all with whom one comes in contact will suffer as a result of this neglect.  The errors and the short falls may not be so egregious as to give rise to a grievance filed with the State Bar or give rise to a malpractice claim, but the harm will be done not withstanding. Unhappy clients will surely not be good referrals.  Lawyers cannot afford disgruntled clients bad mouthing them at every opportunity. A happy client that was well served and obtained good results, is the best advertisement any lawyer could ever hope to have. However, the happy client will not tell a tenth as many people about his or her successes and how pleased he or she was with their lawyer as the disgruntled client who will tell every ear available.

Lawyer bashing has become a national past time over the past decade and a great deal of the blame lies with lawyers.  When we turn our profession into a commercial enterprise, when we put our quest for money above the interest of the client, when we stop being a student of the law, when we cease to be creative in the best sense of the word, when we stop giving back to the profession, when we fail to keep faith with the high standards of the great lawyers that have proceeded us, we have failed not only our profession, but ourselves.  The cost of such failure is borne by all practicing lawyers and passed on to their successors.