New Year’s Resolutions for an Ethical and Happy 2023

It’s inevitable: the end of the year marks a time for reviewing your triumphs and your disappointments. This retrospection often leads to a determination to do better in the coming year. In that spirit I offer some New Year’s resolutions that I hope will be easy to keep and will enhance both your practice and your enjoyment of it.

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First, resolve not to be so hard on yourself when you make a mistake. Every lawyer you know has made some mistake, perhaps has forgotten a deadline, or misdirected an email, filed the wrong document, or missed an issue on appeal. It can happen to the best of us. It’s not a lack of mistakes that makes a good lawyer—it’s how that lawyer deals with their mistake that matters. Don’t waste time beating yourself up—use your energy to take responsibility for the mistake and do what you can to remedy it, not in self-recrimination. Fix the mistake, learn from the mistake and don’t make the mistake bigger by trying to hide it. For more on when an attorney must disclose an error to a client, see American Bar Association, Formal Opinion 481, ”A Lawyer’s Duty to Inform a Current or Former Client of the Lawyer’s Material Error,” (2018) (“Even the best lawyers may err in the course of clients’ representations. If a lawyer errs and the error is material, the lawyer must inform a current client of the error.”). You can find it here.

The second resolution is a corollary to the first: learn to move forward after a defeat. We all have them, and they all hurt. To use a term that is currently much discussed in these stressful times, cultivate resiliency. As a very experienced and wise mentor of mine told me after we suffered a crushing defeat in a criminal trial, “Some days you eat the bear, and some days the bear eats you.” In other words, defeat is not the end of the world, and once you move past it, you can take up a new fight the next day. The importance of the ability to absorb bad outcomes without experiencing guilt, anxiety or self-doubt is being recognized throughout the profession. In fact, Faegre Drinker Biddle & Reath is offering a series of webinars on “resilience training.”

Third, understand how the difficulty and stress of your practice affects you. The responsibility we have for our clients’ matters can weigh heavily on us. All our clients are coming to us for help but some of us represent clients whose needs are just not met by our imperfect system of civil justice. Maybe we are criminal defense lawyers who represent individuals facing years in jail, or prosecutors trying to get justice for victims. Some of us represent children, or indigent seniors, or clients who simply have insufficient resources to effectively remedy their situations. As allies, guides, and protectors of these clients, we feel their pain and it can be exhausting. The Pennsylvania Disciplinary Board published a recent article about this on their website that is definitely worth reading. (And while you are there you, you might also want to check out their recent equally helpful article on the importance of a good night’s sleep.)

Fourth, if you are a solo or a small-firm lawyer, make sure that you understand the requirements of Rule of Professional Conduct 1.15 when it comes to record keeping, IOLTA management, fee agreements, and that poorly understood hobgoblin—the three-way reconciliation. Whatever size firm you are in, don’t think you can simply delegate your responsibility to keep your client’s funds safe. Many a firm has trusted many a bookkeeper with bad results. If you or your firm are holding client funds, make sure that you review the reconciliation monthly, and look at original documents. The rules require it. For information about flat fees, nonrefundable fees and when you can deposit them in your operating account, be sure to read the recent Pennsylvania and Philadelphia Bar Association Joint Formal Ethics Opinion, 2022-300, “Ethical Considerations In The Handling Of Flat, Earned Upon Receipt And Non-Refundable Fees.”

Fifth, resolve to give your garden a good weeding or if you prefer a food metaphor—clean out the pantry! Go through your client list and see what matters have concluded over the past year. Consider three issues: file and document retention, leftover retainers and termination letters. Reach out to the client to discuss these issues. If you have retainers to return, consider a wire rather than a check, to avoid the new “check-washing” schemes. If you do wire, confirm the wiring instructions over the phone and by email. To find a good sample termination letter, and a host of other free, helpful documents, go to the CNA Lawyer’s Toolkit.

Sixth, while you’re cleaning out the pantry of items that you’re finished with, check out that item on the back shelf that you never should have purchased and are now ignoring. Yes—I am talking about the client you regret ever signing up. That’s the file you move from point A to point B on your desk, but never pick up. We have all been there. Pick up the file. Decide if you can withdraw from the representation without harming the client’s interests. See if you can find a suitable referral source for the client. Be sure to read Rule of Professional Conduct 1.16 which describes mandatory and permissive termination of representation and provides guidance on how to get there.
Seventh, do a cybersecurity audit. Make sure that your employees are trained in the latest phishing and email hoaxes, that your anti-virus software is up to date and that your password policy is strong, using two-factor authentication whenever possible. For a seventeen-point cyber-security audit checklist, go here. Also, recently the Pennsylvania Bar Association issued Formal Ethics Opinion 2022-400, “Ethical Obligations for Lawyers Using Email and Transmitting Confidential Information.” The opinion recommends the use of encryption in this increasingly risky environment. Ethics opinions have been cited by the Disciplinary Board as setting a standard of care for the profession, so it’s important to keep up with them.

Eighth, resolve to get help when you need it and to provide help when you can. When you are in trouble, or need support, it isn’t a weakness to reach out for help to another lawyer. We are a “helping” profession and we care about each other. Of course, you can always call Lawyers Concerned for Lawyers in times of trouble, because they are open 24/7 and can be found https://www.lclpa.org/. But even if you just need someone to brainstorm an issue with—pick up the phone and call a friend. Conversely, join a bar association, or affiliate group and spend some time supporting others in the profession. It’s good for the soul and good for business.

Maybe next year, I’ll resolve to come up with 10 resolutions for this column. But for this year, I’m happy with eight. Have a safe and happy holiday season and see you in 2023!

Ellen Brotman, of Brotman Law in Philadelphia, represents individuals before licensing boards, providing effective, caring and efficient assistance. She has served as an assistant federal defender in Philadelphia and practiced in small, medium and large firms with a focus on criminal defense, appellate advocacy, professional responsibility and ethics.

Reprinted with permission from the December 28, 2022 issue of The Legal Intelligencer. © 2022 ALM Media Properties, LLC. Further duplication without permission is prohibited.  All rights reserved.

You can also find this article, as published, here.

With over 25+ years experience, Ellen Brotman began her career as a law clerk in the United States District Court, Southern District of New York. She has served as an Assistant Federal Defender in Philadelphia, PA and practiced in small, medium and large firms with a focus on criminal defense, appellate advocacy, professional responsibility and ethics. She has defended a wide variety of high-profile criminal cases, including political and public corruption, securities fraud, tax fraud, money laundering, currency structuring and other white-collar crimes involving complex trial, sentencing and appellate issues. Ms. Brotman also has extensive experience representing lawyers before the Disciplinary Board of Pennsylvania. She has been recognized as a Best Lawyer and SuperLawyer since 2007 in the area of criminal defense and has served on the boards of the National Association of Criminal Defense Lawyers and the Pennsylvania Association of Criminal Defense Lawyers. She is the founder and owner of BrotmanLaw, Philadelphia, PA.

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