By Douglas J. Ende
(First of two parts)
If every instinct you have is wrong, then the opposite would have to be right.*
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.
"Not that there's anything wrong with that," I hurriedly added, "but that topic is always foisted on me." As chief disciplinary counsel at the Washington State Bar Association, I have done that "Top Ten" list literally a million times. Well, not literally, but you see my point.
Surely there must be something new under the sun when it comes to the chief disciplinary counsel writing a bar publication piece about legal ethics and lawyer discipline. "What if," I inquired, "I did the opposite, and wrote the article about the things lawyers do right, rather than focusing on the occasional missteps and indiscretions?" Grateful that I had consented to write anything at all, the editor happily concurred and gave me a deadline and word count.
The more I thought about it, the more sense it made. 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 my favorite ways that lawyers, when doing (or not doing) things they ought to do (or forbear from doing), get it right.1
...login to read the rest of this article.