New attorneys starting out on their own and more experienced attorneys who are leaving the womb of a law firm for the first time to go solo share in common the need to understand some things about the practice of law and law firm management and administration that they were not taught in law school or at their former firm. After more than 40 years of practice, I have 10 suggestions for both groups that will help them comply with their ethical and professional obligations.

Rule Number 1: Establish appropriate timekeeping, calendaring, accounting, and financial procedures. All lawyers, even contingency fee lawyers[i], should track their time and utilize appropriate practice management and accounting software to protect against trust account errors, missed calendar deadlines, and conflicts of interest between law firm clients. Practice management programs which sync to popular accounting programs such as Quickbooks On-Line allow an attorney to create appropriate financial books and records as well as automate the client trust account reconciliation process. It is also important to deposit all client money, including flat fee deposits, into a client trust account in accordance with Rule 1.15 of the Rules of Professional Conduct. Flat fees may no longer be deposited by a lawyer directly into their operating account without first obtaining written client consent after full disclosure in accordance with Rule 1.15(b) of the Rules of Professional Conduct.

Rule Number 2: Require signed engagement agreements. A good fee agreement should clearly identify the client, correctly describe the scope of work, contain a clear statement of how fees and costs will be charged, and comply with the other statues and rules applicable to attorney-client fee agreements. For example, Rule of Professional Conduct 1.5(d) makes it unethical to agree, charge, or collect a fee denominated as “earned on receipt” or “non-refundable” unless the payment is a “true retainer” as defined in Rule 1.5(e) of the Rules of Professional Conduct. Attorney liens in non-contingency fee cases are improper unless the lien transaction complies with Rule 1.8.1 of the Rules of Professional Conduct. Rule 1.4.2 of the Rules of Professional conduct requires disclosure where an attorney does not carry malpractice insurance. The California Business & Professions Code also regulates the contents and requirements applicable to fee agreements.[ii] Ambiguities in fee agreements are construed against the attorney, and so precision and clarity carry a premium.

Rule Number 3: Disclose potential and actual conflicts of interest and obtain written client consent whenever you are acting as a lawyer for more than one client in any matter. There are always potential conflicts of interest where a lawyer represents multiple clients in the same matter, including the possibility of conflicting instructions, disagreements about strategy or settlement, risks associated with clients sharing confidential information, and the possibility for conflicting demands for the original client file. Lawyers should also consider what will happen if one client discharges the lawyer and the lawyer becomes adverse to that client while still representing the remaining client(s).

Rule Number 4: Properly document that the client has been kept reasonably informed about significant developments. Clients should be provided with copies of all pleadings and documents and be informed in writing of all significant developments. Failure to properly communicate with a client can result in a violation of Rules 1.3  (diligence) and 1.4 (Communication with Clients) of the Rules of Professional Conduct and attorney discipline.

Rule Number 5: Avoid text messaging with clients. Your relationship with clients is professional. Your manner of communication should also be professional.

Rule Number 6: Properly supervise and direct staff. Assistants can do many things under a lawyer’s supervision and direction, but lawyers should avoid relying on unsupervised non-attorneys to sign up clients or discuss the terms of the attorney-client engagement without the lawyer’s direct participation. Questions about the terms or conditions of the attorney-client agreement, and questions about the law, are appropriately addressed by the responsible attorney instead of independently by an intake screener, clerk, paralegal, client service representative, marketing officer or office manager. Failure to properly supervise office staff can result in attorney discipline under Rules 5.1, 5.2 and 5.3 of the Rules of Professional Conduct.

Rule Number 7: Maintain client confidentiality. A lawyer has a duty to maintain a client’s confidential information pursuant to Bus. & Prof. Code Section 6068(e) and Rule 1.6 of the Rules of Professional Conduct. This means properly maintaining and securing physical files as well as electronic files against unauthorized access. A lawyer’s paper and electronic files should be physically segregated from personal files and information. Use separate email addresses for law firm and personal communication. Password protect all electronic devices, preferably with two factor authentication. Ensure that all law firm employees understand the responsibly of confidentiality. Failure to properly maintain client confidential information can result in discipline for breach of the duties of confidentiality and competence under Rules 1.1 (Competence) and 1.6 (Confidential Information of a Client), and breach of the duty to supervise law firm personnel under Rule 5.1 (responsibilities of managerial and supervisory lawyers) of the Rules of Professional Conduct.

Rule Number 8: Properly account to a client for any money and property upon the termination of employment and promptly refund any unearned legal fees. Where an attorney has received compensation to perform a scope of work, and the engagement is terminated before the agreed scope of work is completed, an attorney should account to the client for the value of the services performed and refund any unearned fees. When a client requests an accounting, an attorney is required to provide that accounting in a timely manner.

Rule Number 9: Do not accept cases that are not economic, clients with unrealistic expectations, or legal matters outside of your expertise. Uneconomic cases result in unhappy clients and unprofitable law firms. Clients with unrealistic expectations are almost always disappointed. Taking on work outside your areas of expertise can raise competence and malpractice issues. Any of these things can lead to negative social media reviews by clients, malpractice claims, and State Bar complaints.

Rule Number 10: Keep your State Bar membership records data up to date with your current address, phone number, email address and client trust account bank account numbers. The State Bar can send mail and email communications to lawyers about State Bar complaints and various compliance deadlines. If your information is not up to date, you risk not receiving this important information.