For the Defense - Vol. 6, Issue 4 - 23

Risky Business: A Refresher
O
n a
daily
basis,
our
practices
involve
stressful,
difficult and life-changing cases. However, the most
anxiety producing inquiry is one from the Office of
Disciplinary Counsel. Criminal defense lawyers are especially
vulnerable to disciplinary complaints. Despite a defender's
best efforts, the facts and the law can dictate a result with
which the client is not happy. Perhaps this client then finds
themselves in situations where they have time on their
hands; perhaps this client is the kind of person who fails to
take responsibility for his actions and blames others for their
issues. (Sound familiar?) Clients like this also often hope to
gain an advantage by blaming their lawyer and view the
filing of a disciplinary complaint as a way to bolster that
effort.
Other factors common to the practice of criminal
law can also contribute to a particular vulnerability for
criminal defense lawyers. Victims, prosecutors, and judges
may take offense at aggressive defense tactics; criminal
defense lawyers often have high volume practices and are
stretched thin covering broad geographical territories with
limited resources. Cases can linger on dockets for months
without progress and few lawyers have the capacity to
visit clients in jail just to tell them there is no news. These
circumstances can lead to disciplinary complaints alleging a
lack of communication in violation of Rule of Professional
Conduct 1.4 or a lack of diligence in violation of Rule of
Professional Conduct 1.3. While these allegations are
Ellen C. Brotman
often easily rebutted, the investigations can spread to
other areas of law practice management, where too many
criminal defense lawyers have undiscovered issues that can
cause real trouble. These problem areas can be addressed
proactively to ensure that a limited and defensible inquiry
does not lead the Office of Disciplinary Counsel to become
a sanctionable issue.
Two years ago, I published an article in this Journal titled
" Risky Business: Fee Agreements, Bank Accounts and Record
Keeping Requirements Under the Pennsylvania Rules of
Professional Conduct or What You Don't Know Will Hurt
You. " 1
Because I have represented more than one PACDL
member in the past year who was not aware of this advice, this
article provides an update on the necessity of ensuring that
you are taking just a few simple steps to ensure that your fee
agreements and your financial record-keeping are compliant
with the Rules of Professional Conduct. I also provide some
new guidance on receiving credit card payments, both into
your Operating Account and your IOLTA account.
The easiest and most important modification to your practice
involves the fee agreement and what it says about where you are
depositing the fee. While many lawyers charge " flat fees " or " nonrefundable
fees " those terms alone will not permit the deposit of
those fees directly into the operating account. RPC 1.15 (i) states
" legal fees ... that have been paid in advance to be withdrawn
by the lawyer only as fees are earned " must be " deposited into
Vol. 6, Issue 4 l For The Defense 23
For the Defense - Vol. 6, Issue 4

Table of Contents for the Digital Edition of For the Defense - Vol. 6, Issue 4
