January 2013 Bar Bulletin
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January 2013 Bar Bulletin

Nine Things Lawyers Do Right

By Douglas J. Ende


(Second of two parts)

The editor asked me to write an article about legal ethics and lawyer discipline. Naturally, while we discussed the request and the possibility of my agreeing to it, the topic of topic came up. He suggested that I do a piece on the "Top Ten Ways That Lawyers Get into Ethical Trouble, and How to Avoid Them." I protested.

There are more than 34,000 licensed lawyers in Washington. Each year, about 2,000 grievances are filed with the WSBA Office of Disciplinary Counsel. And over the past several years, there has been an average of 75 public disciplinary actions per year.

A possible conclusion to be drawn from these statistics is that if less than 1% of the Washington bar is disciplined for ethical misconduct, then the remaining 99+% must be, by and large, getting it right. (One could adjust for ethical and professional lapses that are never reported or are otherwise unprovable and for malpractice liability that does not result in discipline, but because the adjustment would be largely speculative, this parenthetical caveat will have to suffice.)

Here, then, in reverse arbitrary order, are four more of my favorite ways that lawyers, when doing (or not doing) things they ought to do (or forbear from doing), get it right.

Lawyers use understandable, written fee agreements.

According to lawyer Michael Caryl, author of Chapter 3 of the Washington Legal Ethics Deskbook, "It is critical for lawyers to have written fee agreements that are clear and unambiguous," and, "A written fee agreement almost always should be used."1

The ethics rule governing legal fees says, "The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation...."2

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