Remedies For The Attorney-Client Conflict
Posted by Peter Schuman on Oct 1, 2002 - 9:59:00 PM
CALIFORNIA—The State Bar of California has the ability and personnel to remedy their poor handling of attorney-client conflicts. The different remedies that I propose are, again, based on conversations with associates who had the misfortune of hearing from the State Bar of California as to an attorney-client conflict.
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The State Bar of California should take the approach of the state courts of California and look at the totality of the attorney-client conflict and relationship. Did the attorney provide proper and good representation for the client? Did the attorney do anything in their representation that affected the overall result of the client's matter? Did the attorney do anything in their representation that prevented the client from getting a better resolution of their matter? Did the attorney violate a more serious code of ethics or law? If the attorney did violate a more serious code of ethics or law, is there a repeated pattern of this violation or is it an isolated incident?
There are other questions that need to be answered when addressing an attorney-client conflict, but these are some of the factors that the State Bar of California should use in deciding an attorney-client conflict. The reason for the question about violating a more serious code of ethics or law is that attorneys violate very minor codes of ethics on many occasions without knowledge of doing so and without affecting the client's matter in any way. The violation of a code of ethics that is buried deep in a code section and has no affect on the client matter is not something the State Bar of California should pursue (and yet they do pursue such trivial matters). The reason the State Bar pursues trivial and meaningless matters against their attorney members is that if they dismiss the matter then no one pays the costs of the handling of the attorney-client conflict. If the State Bar of California pursues the trivial and meaningless conflicts, then they can require the attorney to pay all the costs of the State Bar in handling the conflict, even the costs affiliated with proving a client argument untruthful.
Further, the State Bar should require the argument of the client be equal to standards in civil law, that the client prove their arguments through documentary evidence and/or testimony from witnesses. If the client is successful in their proof, the attorney should then have the burden of proving the complaint/arguments of the client are not truthful or completely accurate. At the very least, the State Bar of California should require the client and attorney to provide proof of their respective arguments at the beginning of the conflict. The work of the client and attorney should be equal.
When a client is found to be untruthful in their representations, the State Bar should dismiss the attorney-client conflict immediately. The client does not have credibility and, more likely, the client is attempting to cause harm to the attorney for their own failings in their legal matters, whether it be they did not listen or follow the instructions of the attorney or were not diligent in helping the attorney pursue their legal matter.
The State Bar of California should treat all attorney-client conflicts equally no matter the size of the law firm. The more equality the State Bar of California brings to an attorney-client conflict, such as adhering to the civil codes, laws, and procedures they require the members to uphold and follow, the more effectively they will handle the conflicts. As a result, conflicts will be handled more efficiently and be more cost effective for the client, attorney, and the State Bar of California.
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