Statistics show a myriad of legal ethics pitfalls in Connecticut, but seven repeat most frequently. Photo: Lightspring/Shutterstock.com

While Connecticut attorneys found a multitude of ways to end up in ethical hot water between January 2014 and August 2019, some bar rules proved trickier than others.

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Seven rules were akin to land mines, accounting for more than 1,800 alleged violations in the roughly five-year period.

The most evoked rule in grievance complaints was Rule 8.4, governing attorney misconduct, which appeared in 453 charges.

Andrew Berman, a partner at Young, Berman, Karpf & Gonzalez/courtesy photo

The rule has a storied past, including a test of its constitutionality in a case that reached the U.S. Court of Appeals for the Second Circuit. The challenger, attorney Mark Villeneuve, was suspended and later disbarred after the Connecticut Workers' Compensation Commission, where he interviewed for a staff attorney position, discovered lies on his resume. Villeneuve later sued state and federal defendants, challenging the facial constitutionality of Rules 8.4(3) and 8.4(4) under the First and Fifth Amendments. But the court disagreed, finding both rules "pass constitutional muster."

Safekeeping property violations under Rule 1.15 appeared more than 300 times, while nearly 200 fee disputes resulted in ethics cases.

Not keeping in touch with clients—a violation of Rule 1.4—was a major stumbling block for attorneys, cropping up on 315 occasions.

"There's no reason to have communication issues today if you're alive and in good physical and mental condition, because it doesn't take much to just push a button and forward something," said Andrew Berman , a Young, Berman, Karpf & Gonzalez partner in Miami who represents clients in high-profile bar discipline cases and who has given lectures on ethical pitfalls for attorneys.

Since Berman started practicing law before the proliferation of cellphones, he's noticed clients now expect faster and more frequent communication. But it's also a lot easier to meet those demands, because attorneys can often forward every piece of electronic correspondence straight to their clients.

 

Surprising leader

Ethics and white-collar defense attorney Brian Tannebaum said that while most attorneys assume trust account violations make up the bulk of lawyer-discipline cases, communication issues are way more common, while violations involving diligence—or the failure to work on a case—are cropping up more and more.

Brian L. Tannebaum, special counsel with Bast Amron/courtesy photo

It takes two ingredients to concoct the perfect recipe for a communication or diligence complaint, according to Tannebaum: clients with very high expectations and lawyers who don't explain things properly. He says that's because both sides typically have radically different experiences and expectations of the legal system.

"Most people only get divorced once, they only get arrested once, they only get a traffic ticket every once in a while. So for them, this is like the only time they're going to go to a lawyer, so they don't know how it all works," said Tannebaum, special counsel to Bast Amron and former vice chairman of the Florida Bar Grievance Committee. "I know how it works. I know that you're gong to hire me and, generally, maybe nothing's going to happen for a while. Because we're going to investigate, then we're going to file something, then we're going to wait for a court date. Things take a long time."

When lawyers don't explain that, though, Tannebaum says clients might assume their attorney is working on their case every day, and can be surprised to hear that their representative isn't in the office when they call, as they're in court on another matter.

For that reason, Tannebaum said he manages expectations from the get-go.

"I tell clients this all the time, 'You can call me every day and ask me what's going on in your case. But I can tell you, when something's going on in your case, I'm going to call you.' And a lot of clients are like, 'OK, I understand that. Thank you for telling me, then I'm not just sitting here wondering what's going on.'"

Another pitfall: rules governing client confidentiality and attorney conflicts of interest, which led to prosecutions in nearly 100 cases, according to the Connecticut Law Tribune review of disciplinary proceedings.

The rules are clear, Berman says, that attorneys can't take on a case where their knowledge of a former client and its business could in any way negatively affect them.

But Berman, who now defends respondents facing discipline, has seen plenty of lawyers prioritize fees over client confidences by telling themselves, "There's no problem, I didn't learn anything that's particularly damaging to that client."

Illustration by David Palmer.

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