There are some odd notions in the world of attorney discipline; sometimes things seem to be as they shouldn’t. For example, we think of attorney discipline as punishment. Granted, it can feel like punishment. But, in fact, it is not penal; it is corrective and protective. “Penal” is about the Attorney General and proof beyond a doubt, with punishment to fit the crime. Attorney discipline is about the Supreme Court doing what it sees fit to protect the public and the profession. That suggests another odd notion: The field we call “legal ethics” has less to do with ethics than with industry-specific rules—the Rules of Court and the RPCs.

Today, we’ll look at the violations that dominate the disciplinary landscape and see how easily lawyers can avoid problems with the OAE. Lawyers can get into trouble for many reasons, but they do get in trouble for relatively few. Conflicts of interest, the unauthorized practice of law, retainer agreements, interference with the administration of justice, business transactions with clients, gross negligence, violations of advertising rules, record-keeping violations, privilege issues, criminal acts, fraud and misrepresentation, breaches of confidentiality, fees and fee sharing, problems with demeanor, and lack of candor all can result in discipline. In my practice, however, I estimate that only four types of violations account for 80% of my clients’ trouble.  These are competence, diligence, communication and general record-keeping violations.

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