Professional Development Workshop: New Ethical Challenges for Rising Attorneys 5/15/08 – Transcript

Adele Lemlek: Hi. This is Adele Lemlek, from the New York City Bar. I’m here today on May 15th with Mary Crane, the principal of Mary Crane Associates. Who’s just presented, at the Professional Development Breakfast Workshop Series, “New Ethical Challenges for the Rising Attorney.” Good morning, Mary. How are you?

Mary Crane: Good morning, Adele.

Adele: Just a couple of questions for you; to follow up with today’s presentation. Under Disciplinary Rule 1-104, it states that “A lawyer with management responsibility or direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the disciplinary rules.” As a new managing attorney, how do you realistically keep track of what junior associates on your team are doing regarding ethics?

Mary: I think what you have really identified is the primary issue that any new supervisor, whether we’re talking about the legal world or the outside world, faces. As a supervisor, you’re constantly walking this very narrow line to, one, make sure that you’re delegating work away to a junior but you’re not micromanaging them at the same time; but at the same time, that you’re also making sure that the work is done well and done consistently.

It is a challenge when giving individuals work, keeping an eye on them. Then making sure that, before that work goes out the door, you’ve double-checked it to make sure everything’s absolutely correct. You can step away from micromanaging–probably something that you don’t want to do–but real critical to make sure that, before something goes, you’ve given final approval for it.

Adele: Thank you. Under Disciplinary Rule 6-101, it states that “A lawyer shall not handle a matter which the lawyer knows or should know that he or she is not competent to handle, without associating with a lawyer who is competent to handle it.” What if the partner gives you an assignment, or a senior associate? Do you tell them that you don’t think you’re competent?

Mary: Absolutely. If you don’t feel you have the ability to handle a particular issue; that you don’t feel fully competent, you have a 100-percent responsibility to that client to make sure that you’ve informed other people. Now, simply by associating with another lawyer who is competent, working a little bit more closely with a senior individual, you can go ahead and maintain your competence or prove your competence.

Your other alternative is you may be able to become competent quickly through study. So, if you can become competent, you want to do that as quickly as possible. Otherwise, you let someone know if you don’t think you’re ready to handle a particular issue.

Adele: Thank you. Disciplinary Rule 7-101 states that a lawyer must represent his or her client zealously. At what point do you cross the line between zealous representation and a violation of the ethical rules?

Mary: Well, actually, I think the disciplinary rules of the state of New York help you clearly delineate, when you are zealously defending a client, when you cross the line. So the first thing you want to do is very, very carefully follow the rules. Know them and follow them.

I think the secondary thing that most of us also do–and we probably do this intuitively–is we do gut checks. For almost any action that we’re about to take, in our professional lives and our personal lives, most of us have this sense in our gut when something might not be right. And I always like to recommend to people: listen to those gut checks. If something in the back of your mind or in your gut is saying, “You know, just maybe…” that probably is telling you you’ve gone too far already.

Adele: Thank you. Now, we know, as lawyers, that we’re not supposed to reveal a confidence or a secret of our client. It’s basically expressed in Disciplinary Rule 4-101. Does that mean that I can’t tell my officemate or a colleague? And then, how do I distinguish between what’s confidential and what’s not?

Mary: Anything that your client talks to you about with regards to a legal matter or a legal issue, you have a responsibility as a lawyer to keep that information confidential. If the lawyer to Martha Stewart is asking Martha Stewart about a cake recipe, doesn’t have to worry about that information being kept confidential. But as soon as they start talking about a legal issue, that information must be kept confidential.

And by the way, that’s true whether or not the legal representation takes place. That’s true whether or not a fee is ever exchanged. When a prospective client is talking with a lawyer, absolutely critical that that information be kept confidential.

And as to your officemate or colleague, it depends, in a great big way. If that officemate or colleague is working with you on the exact same case; then of course you have to reveal information to them so that they’re aware of it. But if the officemate is not working on the same legal matter, it may be possible for you to put up a firewall.

In fact, I think all of us are familiar with law firms that represent, in some cases, the interests of one client and other members of that law firm are representing interests of a very, very different; and those interests may be opposing. In those cases, it becomes absolutely critical for law firms to put up very clear firewalls, to ensure that information is kept confidential.

Adele: And the last question. How do you balance the loyalty to your firm and the loyalty to your client?

Mary: Well, bottom line is: it’s loyalty to the client comes first. As a lawyer, that’s where our responsibilities lie: to make sure that those clients are always protected from the get-go. In the best of all worlds, that’s the primary interest of the firm also. So, in the best of all worlds, you don’t have to worry about balancing those–those are not two competing interests–but instead, everyone’s moving in the same direction.

Adele: Thank you very much.