Homeline CLE Top Ten Ethical Issue That Impact Family Law Lawyers

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1 Homeline CLE Top Ten Ethical Issue That Impact Family Law Lawyers I. Safekeeping Property. A. Rule 1.15 of Minnesota Rules of Professional Conduct requires a lawyer representing a party to safe keep their property, including, but not limited to funds of the client to third persons held by the lawyer or law firm in connection with a representation. These funds are to be held in a identifiable trust account, with no funds belonging to the lawyer or law firm being deposited into such trust accounts. The lawyer may only withdraw said funds from the trust account "within a reasonable time after the fees have been earned or entitlement to the funds has been established and the lawyer must provide the client or third person with (i) (ii) written notice of the time, amount and purpose of the withdrawal; an accounting of the client's or third person's funds in the trust account. If there is any dispute as to the lawyers' right to withdraw the funds, the funds are required to remain in the account until the dispute is resolved. B. In family law cases lawyers frequently obtain retainer checks to bill against for future fees. It is extremely import the attorney not use these funds prior to the time they have been earned and they keep these funds in an identifiable trust account with monthly billings going out to the client at such time as the fees have been earned. The family law attorney must be careful to not mix the attorneys' personal funds with these trust accounts. C. There are numerous cases where attorneys have been disbarred from mishandling client funds. It is often one of the easier claims to prove and usually carries one of the higher penalties as a result of violation. II. Candor Toward the Tribunal. A. Rule 3.3 of the Minnesota Rules of Professional Conduct requires a lawyer not knowingly make a false statement of fact or law to a tribunal, or fail to correct a false statement or material fact of law previously made to the tribunal by the lawyer; fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or offer evidence the lawyer knows to be false. B. In family law cases we so often rely on the representations of clients. We have a duty to make sure the representations of the client are true and correct. The family law lawyer can do this with respect to financial issues by verifying the accuracy of statements through financial records such as 1

2 bank account statements, retirement account statements, investment account statements, tax returns, paystubs and the like. It is extremely important the attorney verify the accuracy of the representations being made not only to the Court but to the opposing party and attorney. Failure to do so can result in not only ethical issues, but also the overturnment of an Order. C. If the family law lawyer knows a false statement has been made the lawyer has a duty to correct the false statement. This can be extremely difficult especially if happens in the courtroom at a trial or hearing. The lawyer should take action to make the correction. D. The attorney must also make sure to provide the Court with accurate law, even if it is adverse to the client's position. The family law attorney is better served to distinguish the adverse law from the case at bar especially considering the wide discretion that is afforded to family law judicial officers in this area. III. Confidentiality of Information. A. Rule 1.6 of the Minnesota Rules of Professional Conduct requires a lawyer not knowingly reveal information relating to the representation of a client unless the exceptions contained in the Rule are met. B. In family law cases the confidentiality of the information provided is extremely important. The family law professional deals with very sensitive areas of their client's lives, including parenting issues that may involve mental health or physical disabilities, chemical dependency issues, and other very personal information about the individual. The family law attorney must make sure to keep this information confidential. This can become difficult especially if there is a third party who is paying the fees. In that situation the family law attorney should be very careful to make sure the third party understands the confidentiality and relationship the family law attorney has with the client, which does not extend to the third party. C. In additional to the above, the family law attorney will handle some very sensitive financial documents and information from their client. There are very specific rules with respect to how these documents are to be filed with the Court and to other parties. This includes removing social security numbers, account numbers, and other identifiers. An attorney may inadvertently file an income tax return, without redacting the social security numbers, which can cause great problems for the client especially considering family law files are public in nature unless sealed by the Court, which is rare. Failure to do so can result in not only an ethical issue, but also the pleadings not being accepted by the Court or returned to the lawyer. The family law attorney may also run into malpractice issue 2

3 if a third party obtains the confidential information of the lawyer's client and commits identity theft. The family law lawyer should be very careful with the third party's personal and financial information. IV. Communication. A. Rule 1.4 of the Minnesota Rules of Professional Conduct requires a lawyer to promptly inform the client of any decision or circumstances with respect to which the client's informed consent is required; reasonably consult with the client about the means by which the client's objectives are to be accomplished; keep the client reasonably informed about the status of the matter; promptly comply with reasonable requests for information; and consult with the client about any relevant limitations on the lawyer's conduct when the lawyer knows the client expects assistance not permitted by the Rules of Professional Conduct or other law. B. Communication is extremely important to the family law lawyer considering the very personal nature of the cases. There are a number of clients that will need regular communication to be kept apprised of their case. The family law lawyer should make sure the client is made aware of decisions as they come out and that they are reasonably informed about the various processes in the case, including Court hearings, alternative dispute resolution processes, and other events in family law cases. C. There are a number of client that may want to talk on regular basis about the same issue in family law cases. It may be prudent in those situations to send a letter to the client detailing the information that is being requested numerous times so the client and the lawyer both know the expectations. The lawyer is also well served to put any advice in writing if the client does not appear to understand it so the client can reference it. V. Competence. A. Rule 1.1 of the Minnesota Rules of Professional Conduct requires "a lawyer shall provide competent represent representation to a client." The Rule defines competent representation as "the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation." B. There are a number of attorneys who take on family law cases who do not routinely practice them. They can run into the issue of competence particularly if they are not family with the Rules of Court as they apply to family law cases. This can be a dangerous issue considering the client's interests may be adversely impacted if the lawyer does not know the applicable family law Rules of Practice, case law and statutes. It is recommended that any attorney who is going to take on a family law case 3

4 become family with the General Rules of Practice, and the case law and statutes dealing with family law issues. VI. Conflict of Interest. A. Rule 1.7 of the Minnesota Rules of Professional Conduct requires "a lawyer shall not represent a client if the representation involves a concurrent conflict of interest." A concurrent conflict of interest exist if "the representation of one client will be directly adverse to another client; or there is a significant risk the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person, or by a personal interest of the lawyer." The lawyer may represent a client if there is a concurrent conflict of interest if "the lawyer reasonably believes the lawyer will be able to provide competent and diligent representation to each affected client; the representation is not prohibited by law; the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and each affected client gives informed consent, confirmed in writing." B. Conflicts of interest often arise in family law cases. The family law lawyer should be very careful to run a conflict check before taking on any family law client. This would include doing conflict checks on former spouses, and businesses of which a potential party is an owner. Obtaining only the parties' names will likely not suffice as the party may have an ownership interest a business or may have been married to a former client. C. Failure to identify a conflict of interest at the outset of a case can be extremely expensive for the client especially if the attorney has to withdraw once the conflict come to light. It can also be damaging to other clients of a firm if in fact the firm has to withdraw from representing both clients as a result of the conflict not having been identified at an earlier time. VII. Client with Diminished Capacity. A. Pursuant to Rule 1.14 of the Minnesota Rules of Professional Conduct "when a client's capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment, or some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client lawyer relationship with the client." However, "when the lawyer reasonably believes the client has diminished capacity, is at risk of substantial physical, financial, or other harm unless action is taken and cannot adequately act in the client's own interest, the lawyer may take reasonably protective action, including consulting individuals or entities that have the ability to take action to 4

5 protect the client and, in appropriate cases, seeking the appointment a Guardian ad Litem, conservator, or guardian." B. Family law attorneys will often times deal with clients with diminished capacity. A divorce is a very difficult process. The family law attorney has to make the decision whether the client is capable of making decisions on their own or whether they need the assistance of a Guardian ad Litem, conservator or guardian. C. If the lawyer has any doubts about whether a client needs assistance they should recommend the client obtain therapy and get the advice of a professional to assist them in making the determination. VIII. Conflict of Interest Current Client Specific Rules A. Pursuant to Rule 1.8 of the Minnesota Rules of Professional Conduct a lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client" unless the terms are fair and reasonable to the client and are fully disclosed in writing, the client is advised in writing of the desirability of seeking independent legal advice and the client gives informed consent in a document signed by the client. The lawyer must further keep reasonable boundaries between him or herself and the client. B. Family law presents some very difficult issues with respect to conflict of interest. The family law attorney will come to know their client on a very personal level. It is important the family law attorney keep and maintain boundaries with respect to the relationship so the client and attorney are only involved with respect to the representation. C. If the representation is going to go beyond just the attorney client relationship for the family law matter, then the lawyer should very carefully look at the Rules of Ethical Conduct to make sure they are not in violation. IX. Diligence. A. Pursuant to Rule 1.3 of the Minnesota Rules of Professional Conduct, "a lawyer shall act with reasonable diligence and promptness in representing a client." B. This Rule does require a lawyer to press for every advance that might be realized for a client, but rather to act diligently in their representation of the client. Notably, this is not a opportunity to "use offensive tactics of preclude the treating of all person involved in the legal process with courteously and respect." Rather, it requires the lawyer to promptly act on the client's behalf. 5

6 C. This is extremely important in family law cases as there is a number of items that are typically going on in a case. The lawyer must be able to respond to settlement proposals, pleadings submitted to the Court and general correspondence both with the client and opposing attorneys, or opposing parties if unrepresented. This does not mean an immediate response is necessary, but the attorney must act diligently to respond. X. Declining or Terminating Representation. A. Rule 1.16 provides a number of situations upon which a lawyer is required to withdraw from representation of a client if the representation is "in violation of the Rules of Professional Conduct or other law or the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client, or the lawyer is discharged." There are also a number of promissory withdrawals contained in the Rule so long as the withdrawal does not have a "material adverse effect on the interest of the client." B. A family law lawyer is not required to continue to represent a client indefinitely. If the lawyer is not physical capable of representing a client or the client wants the lawyer to engage in unethical behavior the family law lawyer must withdraw immediately. Further if the client fires the attorney the lawyer cannot continue to work on the case. C. With respect to the permissive withdrawals, the family law lawyer must be careful to make sure it does not adversely impact the client. For instance, withdrawing the day before trial, a hearing or mediation session could have a materially adverse impact on the client's interests. The family law lawyer should weigh carefully the timing of the withdrawal and the impact it may have on the client in these permissive situations. D. In the event the lawyer does withdraw, the client is entitled to their file. The lawyer cannot hold it to negotiate for payment of fees or other items. 6