Legal Ethics, Small Law Firms

Ethics And The SmallLaw Practitioner

One thing about being your own boss in a small firm is that you get the chance to find out how ethical you really are.

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Like everyone else, I took ethics in law school. We learned the ABA Rules, role-played scenarios such as a client revealing during a deposition that he’s a white supremacist, and generally spent a lot of time discussing what-ifs. Then I had to pass the MPRE, which is ostensibly about ethics, though I suspect it primarily tests one’s ability to answer trick questions (e.g., “which one of these questions is not three-fourths false?”). So when I graduated, hopefully I had a good understanding of ethics.

Then I went to Biglaw and forgot it all.

Well, maybe not exactly, but as an associate getting force-fed work, you don’t really have that many ethical issues. I didn’t have long agonizing brooding sessions about whether it was ethical to draft a 10-K. I’d even say that it takes some effort to be unethical. Starting a Ponzi scheme or telling people the parties to the latest M&A deal aren’t things that are hard to avoid. (I wouldn’t have had a clue who to blab to even if I had wanted to tell someone — it’s not like anyone was demanding I tell them what I’m working on, or even expressing any interest in it — and in the throes of a deal I was too busy to communicate with anyone outside of the circle of trust anyways.) I used to read stories about lawyers being disbarred for “co-mingling” funds and I knew that sounded bad, but I’d wonder what exactly that meant. Why did the lawyer have his client’s funds in the first place? Clients never sent me money and asked me to hold onto it for them for awhile. Odd.

But in SmallLaw, ethics matters are much more upfront and personal. When you have your own practice, it doesn’t take long to become well-versed in the ethics rules. You learn quickly what a lawyer’s trust account is and that when a client pays a retainer it has to go into your trust account and stay there until you earn it. (So no trips to Rio until you actually do some work.)

When I have lunch with my fellow SmallLaw practitioners, something about the ethics rules will invariably come up, conversations which simply didn’t happen in Biglaw. Advertising, for example. There are a lot of ethics rules relating to advertising, and they vary from state to state. In general, you’re not allowed to make promises and you can’t call yourself something that implies a certain result. (So my marketing scheme of being the “Jailbreak Lawyer” went down the tubes.) Because of the New York ethics rules, in my quarterly newsletter I have to include “[ATTORNEY ADVERTISING]” in the subject line. So basically every three months I pull an all-nighter composing something that goes right into everyone’s spam folder. Makes me feel all warm & fuzzy inside.

And in SmallLaw, you get presented with all kinds of shady stuff. People will dream up a get-rich scheme — often involving soliciting medical malpractice cases — and all they need to carry it out is someone with a law degree who doesn’t ask a lot of questions. (You get this a lot if you have a D.C. license, where it’s legal to partner with a non-attorney). Unethical? Hard to say for certain. But close enough to make me nervous.

One thing about being your own boss, you get the chance to find out how ethical you really are. When you don’t have enough in your operating account to cover all your bills for the month yet you have thousands of dollars sitting in your trust account that you could transfer over with two clicks, that is a much more immediate in-your-face ethics situation than resisting puffing your hours or keeping the parties to an M&A deal confidential.

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But, like a lot of things about the leap to SmallLaw, it all helps you be a better attorney, and maybe even a better person. You make the decision you’re going to do the right thing, and then go from there. After all, someone needs to be constantly checking the rules of professional responsibility and making sure you’re in compliance. Might as well be you.

Gary J. Ross opened his own practice, Jackson Ross PLLC, in 2013 after several years in Biglaw and the federal government. Gary handles corporate and compliance matters for investment funds, small businesses, and non-profits, occasionally dabbling in litigation. You can reach Gary by email at Gary.Ross@JacksonRossLaw.com.

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