The Ethical Lawyer: Application of ethics and malpractice

The Ethical Lawyer: Application of ethics and malpractice

WASHINGTON, February 9, 2014 – Yes, the joke is that the phrase is an oxymoron.  Indeed, there are more than an adequate number of people (even relatives and spouses of lawyers) who are anxious to tell their favorite lawyer joke. Why did the lawyer in the ocean get a free pass from the sharks?  Professional courtesy.  Add ethical conduct into the discussion and then, to some, the words lawyer and ethics do not fit into the same sentence.   Every occupation has its bad apples.  Why do used-car salesman get such a bad rap?

For lawyers, the bar is higher, because lawyers are entrusted with helping you, guiding you and directing you through some of life’s most important matters.

Of significant note is that committing malpractice is not necessarily the same as being unethical, but the two often overlap.  Malpractice is conduct that “falls below the standard of care” in the entirety of handling a client’s case.  It is not simply that the result is not favorable.  A criminal attorney who fails to investigate the facts and fails to interview potential witnesses is probably guilty of malpractice.

The mind of one who simply does not like lawyers is not going to change. Moving past “bedside manner” however, most attorneys do adhere to the profession’s requirements in adhering to ethical conduct.   Ethics are among the highest of priorities for bar associations and attorney licensing authorities.  You should know that most states require attorneys to take continuing legal education courses, and many of those require that continuing ethics training is included.

Locally, Maryland does not require continuing legal education.  Virginia does.

A typical continuing legal education class in Virginia involves a full day of discussion, tips, analysis and practice pointers on a particular subject matter.   A criminal CLE class will offer different discussion than one focused on divorce, custody and visitation matters.  Most CLE programs include at least an hour addressing ethical issues and standards pertinent to the practice area of the class’ theme.   A criminal law ethics discussion might include what obligations defense lawyers and prosecutors have to each other concerning disclosure of evidence.  A divorce law ethics discussion might include similar disclosures about the assets of the divorcing couple.

CLE programs are typically packed — sold out within the first few weeks after being announced.  This is true because most attorneys agree that learning makes them more effective, more proficient, and better able to help their clients.  This includes the ethical learning and re-learning that takes place.  Every year or so, it seems, new requirements take effect, and taking the classes are a good thing and necessary to be up to date.

The public needs to know that despite the bad rap lawyers sometimes get, there is an underlying, beautiful structure that governs actions and conduct. Bar associations take allegations of unethical conduct very seriously, and investigate vigorously.  When violations occur, consequences are often more than appropriate to “fit the crime.”

Consider some statistics; then,  some concepts that may have use for you in dealing with your attorney.

The incidence of complaints about lawyers by their clients is very small.  The top two practice areas triggering malpractice complaints are (1) real estate and (2) personal injury matters.  Residential settlements and commercial transactions account for the bulk of complaints and lawsuits in this area.   Next is personal injury.  Claims against law firms consisting of 2-5 attorneys get the highest number of complaints (2.2 claims annually for every lawyer in the firm), whereas claims against solo practitioners only found .77 claims annually.

The types of errors lawyers made breaks down as follows (recent American Bar Association statistics):

Substantive Errors:  46.61%

*Failure to know the law

*Inadequate discovery

*Planning or procedure error

*Failure to know deadlines

*Error, pubic record search

*Conflict of Interest

*Error/Math Calculation

Administrative Errors:  28.63%

*Failure to calendar/react to calendar


*Failure to file document

*Lost file/document/evidence

*Clerical error

Intentional Wrongs:  13.53%

*Malicious prosecution


*Civil rights


Client Relations:  11.22%

*Failure to obtain client consent

*Failure to follow client instructions

*Improper Withdrawal

Dealing with an attorney can be complex, often directly related to the complexity of the matter brought to the attorney for handling.  How an attorney should properly “manage” the relationship with his or her client is not always set in stone, but, within certain parameters, consider the following:

An attorney must always fully explain the fee and how the fee is determined to potential clients.  Fee arrangements are always to be in writing.  Reporting work done and billing procedures are to be explained.  Explaining fees means the client should have a good idea of the total cost of the representation.  An analogy given is that of buying a car:  you want to know the full cost before you sign the papers.

Attorneys should listen to you.  It is your legal matter.  While filing a lawsuit may be available, that may not always be the best, or at least, the first course of action.  Attorneys should ask you questions, as often your “story” will not provide important factual information.  Attorneys should learn your goals and objectives.  Attorneys should propose alternatives  and multiple solutions if available.  Attorneys should make it clear that you are the decision maker.

Attorneys should maintain good communication.  This requires prompt return of telephone calls or email, and regular updates about your case.  Attorneys should explain delays and advise you of expected completion dates.

Attorneys should be personable.  Imagine that:  a class for lawyers telling them to be personable.  An interesting fact:  most people who file medical malpractice  lawsuits against their doctor say they would not have done so if the doctor was nice to them and explained things.  Enough said.  Lawyers should be personable.  Lawyers are being told this in CLE classes by their peers because clearly some are not.

How do you know if a politician is lying?  Mouth is open.  Hmmm… some politicians are lawyers.

Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980.  He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website. He is available to speak to your group on numerous legal topics. 

His new book “Who Will Pay My Auto Accident Bills?” can be reviewed on and can be ordered there, or obtained directly on Amazon:  Click here to order

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