Despite that there are always at least one lawyer available to pursue and argue each side of any given case, it does not mean that we have no moral or ethical standards. We are unusually open about our standards, publically arguing about them and we police ourselves so forcefully and vocally that you would think that we are always unethical. However, this perception is excessive. In a world where most professions are expected to close up and refuse to talk when questioned (often for fear of lawsuits), lawyers are notoriously open about revealing those in our profession who are flawed.
Every state has a system for disciplining lawyers. Most often, states leave this in the hands of the lawyers, because we're harder on ourselves than any governmental disciplinary board would ever be. But we require proof of unethical behavior before we're going to wreck someone's livelihood, and this requires something more than just that you did not win your case that you thought was a slam dunk, or that you had to pay your lawyer more than you think fair. These things will be looked at in accordance with whether you signed a contract to pay a certain amount and whether something was done in the case that caused it to be lost (or whether your expectations about winning were excessive).
Most of the complaints I hear about other lawyers involve the price or the failure to win as much as expected, or the loss of the case entirely. However, the bar association tells us that the most frequent justified complaints, however, are about the lawyers failing to communicate with the client. This tells us that a lot of people have high hopes of winning big while paying little, which hopes are not justified by the case. Maybe the lawyer should have been better at communicating these issues, and that might have averted misunderstandings about fees or the strength of the case, but the bottom line is that usually when the bar examines a complaint about fees or failure to win a case, the result is often that the fee is justified or the failure to win is appropriate, meaning that the client had unreasonable expectations.
Lawyers have an ethical responsibility to zealously advocate for our clients, but we also have a duty to give our clients information about the process, give them realistic understanding of what is likely to happen, and keep them informed of the costs along the way.
We try, but we are faced with optimistic clients who take our confidence in court as if it their case is a slam dunk, and they close their ears when we are talking business or trying to give them the reality behind the scenes. When we go to court, we must give the perception of confidence. If we let our concerns show, the judge and jurors will wonder if we are justified about our concerns, and not give us the result we want based upon our behavior rather than the facts of the case. Some clients get caught up in the show of confidence, and close their ears to anything else.
Many of us write lots of disclaimers. And many clients fail to read what we've written or fail to ask about it when they do not understand. It is your lawsuit and your fees that we are talking about, and we try to explain it, but if you do not read what we've given you and do not ask what you do not understand, we will not be disciplined when it does not go as you hope. Usually, when I am talking to a person who is disappointed in a lawyer they had before they approached me, I find out that it is because they listened to the part they wanted to hear, and let the details slide.
Which is not to say that there are not some lawyers who have done wrong things. I have been opposing counsel against some attorneys who have been disbarred, and have taken over cases from attorneys whose clients left them after some unethical behavior, who have since been sanctioned for that behavior. But this is very rare. The more common situation is a simple misunderstanding, the failure to listen, the unrealistic hope that the lawyer can perform miracles for cheap.
And the moral?: Ask questions. Don't expect something for nothing. Do not agree to a contract that you do not understand. Read and understand the stuff your lawyer gives you, and do the homework your lawyer asks for.
There are ways to manage your relationship with your lawyer and your case, without making a mess of it or making it more expensive than necessary. We'll discuss that in another post.
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