“What time zone am on? What country am I in?
It doesn’t matter, it’s five o’clock somewhere.”
~ Alan Jackson, ‘It’s Five O’clock Somewhere” recorded with Jimmy Buffett
“It’s Five O’clock Somewhere” refers to a popular expression used to justify drinking at any time of day, given that somewhere in the world it’s 5:00 p.m. — the end of the work day for a traditional “nine-to-five” employee.
While, this might apply to happy hour, it does not apply to ethics rules for legal professionals. Ethics rules continue to apply after the work day ends.
The Basics:
- Attorneys are bound by the ethical rules adopted by the state where they practice…usually those ethics rules are adopted by rules adopted by the American Bar Association.
- A person engaged in a profession, such as medicine or the law, is held to a higher ethical standard than the average person. This is because the higher standards are necessary to protect the public that the professional serves.
- In law, ethical standards that apply to the profession also apply to all individuals working in the profession, whether they’re the licensed professional or they are employed by the professional.
- Members of the legal support staff, not just the paralegals, are held to the same high ethical standards as attorneys.
Ethics rules are quite clear while you’re at work. Within the confines of the work place, conflicts checks are routine. It’s usually apparent whom the firm is representing. Everyone understands that communications, both oral and written, must be confidential. Privileged documents and communications are evident. It’s obvious that the attorney is the one licensed to practice law. AND, other people are paying attention to what you are doing.
It’s after hours, when you’re not at the office and no one is watching or listening, that you may let your guard down and ignore the ethics obligations that follow you wherever you go. All of your actions after hours are bound by the same ethical obligations as when you are on the job. Further, these unethical actions may be just as damaging, perhaps even more damaging, as anything you do at the office.
Here are some interesting situations for you to consider. Do any sound familiar?
“Do I need a lawyer?” People will want to talk about potential legal issues. You are not licensed to practice law and cannot give legal advice, even something as simple as telling them that, yes, they need to see a lawyer. Instead, suggest that they make an appointment with someone at your firm so that the attorney can evaluate their case.
Another issue is that this person is not a client of your firm and, therefore, the conversation you have with him is not privileged and may be discoverable by an opposing party.
“I have a quick question about my case.” Never engage in conversations about a client’s case (with the client or anyone else) outside the office. You never know who may overhear the conversation. If it is overheard by a third party, the conversation is loses the privilege. And you also owe the client the duty of keeping everything about their case confidential. This is virtually impossible in a public place.
“Sweetie, I need a simple will and I just can’t afford a lawyer.” Of course you want to help your poor Aunt Pearl and you may think you can draft a ‘simple will’. However, you do not have the ability (or the authority) to make legal decisions for another person. Only the attorney can use his or her expertise to apply legal judgment to an issue.
Besides, you may be doing your Aunt Pearl a real disservice. It’s entirely possible that she has some complex estate planning issues that only the attorney would recognize and have the knowledge to give her the advice she needs. Also, this all holds true whether or not you’re paid for helping someone with a legal issue. Giving free advice or assistance is still the unauthorized practice of law.
“Will you serve on our board of directors?” Is the entity one of your firm’s clients? If so, serving on their board may be a conflict of interest. Discuss this issue with your attorney before you make any commitments.
“Can we talk off the record about my case?” Your answer is ‘NO’ whether the person is a client or the opposite party. Remember that there are issues of confidentiality and privilege. Also, you cannot have communications with a represented party without their attorney present.
“I heard Bob and Mary are getting a divorce!” Oh, yes, your firm is representing Bob in his down and dirty divorce from Mary. You know all the sordid details! Keep your lips zippede! Even telling someone that the firm represents Bob is unethical.
“Hello, Judge!” Communicating with the judge about a case is prohibited and so is any effort to influence the outcome of a case. Also, you must avoid even the appearance of impropriety.
“I slipped and fell on the ice!” A golden opportunity, right? You’ll get a new client for the firm and look like a hero! Wrong! Staff cannot solicit clients and only the attorney can form the attorney client relationship. So don’t hand the injured person your card and tell them your firm is the best one to handle a slip and fall case. Also, keep in mind the issue of privilege. The person is not the firm’s client and your conversation may be subject to discovery.
These are just some of the slippery situations and you may encounter. Always be mindful of potential ethics mine fields that await you both in and out of the office. Keep in mind the American Bar Association’s Model Rules of Professional Conduct, as well as those adopted by your state and any professional association you belong to. They are not long, nor are they difficult to understand.
Keep in mind that ethics rules always apply when you’re out with friends, at social events, or in public places. When someone asks you a simple question you’re tempted to answer, you have to handle the situation ethically to protect yourself, your firm, and the client.
Always remember that your ethical obligations are with you 24/7… they don’t change or end when the clock strikes five.
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©2016Vicki Voisin, Inc.
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