Lawyers representing clients in personal injury claims face numerous ethical pitfalls every time they look for, evaluate, accept and handle a new case. Nonetheless, honesty, common sense and a solid understanding of the Rules of Professional Conduct should protect most of us from making mistakes.

Finding the Case

Your practice type typically dictates how you find your cases. In my practice, almost all of my cases come from referrals from other lawyers, prior clients and current clients. For other firms, advertising is responsible for the bulk of new business. Common forms of advertising include television, firm websites, social media, radio, billboards and print media. Advertising often provides great exposure to potential clients. The Rules of Professional Conduct, of course, permit advertising via Rule 7.2. So, if the case does not find you through a referral or word-of-mouth, how can you actively look for new cases under the rules?

Simply stated, don't mislead. Throughout the various subsections of 7.2, language exists mandating disclosure of various facts affecting the veracity of any advertisement. For instance, if you advertise on TV using a paid actor portraying a client, you need to disclose that fact. Similarly, if you concentrate in a specific area of the law, for example, motor vehicle crashworthiness cases, and you advertise that “concentration” on your firm's website, the rules certainly permit you to do so, provided you are truly competent to handle those cases “from intake to trial.” If, however, your firm handles those cases only up to the point of formal litigation, you must disclose the existence of any referral or co-counsel relationship. To avoid problems when advertising, simple honesty and full disclosure in the ad should satisfy Rule 7.2.

Handling the Case From A to Z

If you have a law degree, passed the bar and have some experience handling injury cases, doesn't that qualify you to handle every type of injury case—regardless of the complexity? Rule 1.1 defines “competence” as possessing the “legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” This sounds simple, but I submit that true competence in today's practice requires the ability to handle every aspect of the case from start to finish. For instance, let's say you commonly handle low-impact, soft-tissue injury cases. Then one day a new client retains you to handle a tractor-trailer case with permanent injuries. Assume you handle the negotiations with the insurance adjuster perfectly and ultimately reach a seven-figure settlement without litigation. As part of the claim, the client's health insurer sends you notice of its subrogation claim, and at settlement your staff subtracts several thousand dollars from the client's proceeds and pays it to the carrier. However, you never researched the lien issue and failed to realize it was invalid under Pennsylvania and/or federal law. This certainly could be problematic and could result in a malpractice claim. Thus, “competence” also requires recognizing collateral issues and diligently working to resolve them in a reasonably prudent manner.

Conflicts of Interest

Conflicts arise in various forms in injury cases. Often, someone other than the client, like a family member or loved one, will contact you initially to discuss the claim. Sometimes, two people injured by the same product or in the same accident will want you to represent their interests. Non-injured spouses will have collateral causes of action, as will parents of injured children. These potential pitfalls can cause major ethical problems if not handled properly. Fortunately, a proper understanding of the relevant Rule of Professional Conduct, the case law interpreting the issue and full disclosure to the client can usually prevent problems.

Any time an injury lawyer faces a potential conflict, he or she should consult Rules 1.7 and 1.8. A very common scenario involves representation of multiple plaintiffs or claimants, typically in motor vehicle claims. Generally speaking, Rule 1.8(g) prohibits representation of more than one person involved in the same accident. For example, assume the driver of a car hurt by another tortfeasor retains you and at some point thereafter her front-seat passenger wants to do the same. Of course, if initial review of the accident suggests your client (the driver) may have contributed to the accident, the lawyer should not represent the passenger, as per Rule 1.7(a)(1). Change the facts slightly though and assume liability clearly rests solely on the third-party driver. The disclosure language in 1.8(g) should allow the lawyer to represent both driver and passenger. However, further investigation must be done to determine the amount and type of the tortfeasor's liability policy, as a single-limit policy, i.e., one limit of liability coverage per accident regardless of the number of claimants, will result in a conflict. Again, full disclosure and transparency can solve the problem.