If you are concerned about how to handle ethical issues in the workplace or about your legal employer, it can be a very tough situation to contend with.
Let’s talk about what to do next.
The practice of law is a lofty profession. Without exaggeration, we can easily say that lives, livelihoods, and happiness are all on the line from time to time — for both attorneys and their clients.
With stakes this high, it is understandable that some legal professionals are sometimes tempted to bend the rules to favor themselves or the people they serve. But while the temptation of bending the rules may be understandable, the practice of doing so is not.
Nonetheless, ethical violations happen, and that’s why it’s important for legal professionals to know how to handle ethical issues in the workplace.
Attorney discipline in California
The Annual Discipline Report (ADR) offers a summary of the State Bar’s fulfillment of its legal responsibility to safeguard the public from attorney misconduct.
While the discipline system encompasses various interrelated elements within the State Bar, the ADR’s mandated reporting centers on the Office of Chief Trial Counsel (OCTC), which is responsible for receiving, investigating, and, when necessary, prosecuting allegations of attorney misconduct.
The report covers July 1, 2022, to June 30, 2023.
- Opened more than 17,000 cases
- Met case processing goals for 86% of cases closed or otherwise resolved, including 91% of non-complex cases and 74% of complex cases
- The total number of closed or otherwise resolved cases not meeting goals (defined as backlog) is 1,983, a slight increase from FY 2022 (1,965)
- The number of complex cases in backlog is 964, a decrease from FY 2022; and
- The number of non-complex cases in backlog is 1,019
- Decreased average case processing times for cases closed with no action, a referral, or non-disciplinary action
- Increased average case processing time for cases filed in State Bar Court
- Obtained discipline for 243 attorneys, including 76 disbarments, 91 probation terms with actual suspensions, 31 probation terms with stayed suspensions, and 45 reprovals (both public and private).
Ethical issues in the workplace
In light of this, we want to explore what rank-and-file law firm employees should do if they witness ethical violations within their firm.
To do this, we’ll present three hypothetical ethical dilemmas — ones we’ve deemed small, medium, and huge — and we’ll discuss how law firm employees could handle each situation.
While we don’t pretend to provide every possible solution, we hope this serves as a solid starting place should you experience any ethical issues in the workplace.
Ethical dilemma #1: The “small” infraction
You’re a legal assistant at a large firm. One day, you decide to get away from the office for lunch. You head to a restaurant down the street and sit by yourself in a booth toward the back. Moments later, two of the firm’s associates walk in. Without seeing you, they take a seat at the booth directly behind yours.
Much to your dismay, you can hear everything they say for the next hour. In particular, you hear them spend 60 full minutes debating the latest episode of “America’s Got Talent” while they order copious amounts of food. You also overhear them when the bill comes and they notice they’ve racked up an $80 tab just for lunch.
“No worries,” you hear one of them say. “Let’s just say we were discussing the Acme Co. litigation and we’ll bill the client for a working lunch.”
At the end of the month, you review the firm’s bill to Acme Co., and see that the associates did, in fact, bill the client for an $80 lunch that they falsely claim they shared with an expert witness on the case.
The solution
This is an admittedly difficult situation to navigate. On the one hand, you’ve got the invoice showing that the associates made what you believe to be a false billing entry. On the other hand, you’re the only one who saw them at the restaurant (without the expert witness) and overheard them talking about anything but a client matter.
While many ethics experts would suggest you first speak directly with the offenders, the relative imbalance of power between you and the associates within the firm means you may be risking your job to do so. Use your best judgment and talk to the attorneys if you believe they will hear you out without retaliation.
Other options include submitting an anonymous report to the associates’ supervisor or making a formal written complaint.
In this instance, however, it may be best to share your observations and concerns with your direct supervisor. That way, someone with greater seniority and experience than you can help you decide how the misconduct should be reported within your firm’s particular channels.
Ethical dilemma #2: The “medium” infraction
You are a paralegal at a medium-sized firm who is assigned to work solely for one partner and two junior associates.
You have long suspected the partner has a drinking problem, but you have no independent proof of that, and you’ve always figured that it wasn’t your business, anyway. As long as it doesn’t affect the firm or clients, you reasoned, it isn’t something to worry over.
One morning, the partner is scheduled to take a case-defining deposition, but is nowhere to be found at the appointed start time.
Eventually, you find him in the bathroom, reeking of booze and vomiting repeatedly. He slurs instructions for you to have a junior associate perform the deposition — a herculean task given that the young associate is not assigned to this particular matter and is wholly unprepared to do so.
The associate does her best, but ultimately, important deposition testimony is lost because key questions weren’t asked.
The solution
One of the most interesting things about solving this dilemma is the stark lack of resources when it comes to reporting an attorney whose alcohol use is jeopardizing a client’s legal matters.
Plenty of resources are available to help the attorney himself, including California’s Lawyers Assistance Program (LAP) and The Other Bar. When the time is right (and your relationship is right), it is probably a good idea for you to refer the attorney to those resources.
More pressing right now, however, is the fact that the attorney’s misconduct seriously placed a client’s legal matter in harm’s way.
Not only is this an ethical violation, but it also creates a big malpractice liability risk for the firm.
Thus, in this instance, it is appropriate for you to go above this attorney’s head and to report the misconduct to the managing partner(s).
A word to the wise, however: there is no room for opinion or judgment here. Simply report the facts, as you saw them, allow the firm to conduct its own investigation, and try not to get emotionally invested in the ultimate outcome.
For your sake, the client’s sake, the firm’s sake, and the attorney’s sake, your neutrality and objective observation are critical.
Ethical dilemma #3: The “huge” infraction
You are an accountant at a small, local firm that is struggling financially.
After looking at the books, you report to the managing attorney that the firm’s accounts payable reserves will not cover rent or employee paychecks for the upcoming month. The managing attorney instructs you to “borrow” money from client trust accounts to pay the current bills, assuring you that the firm will replace the money before anyone notices.
The solution
As most legal professionals know, this is the cardinal sin of lawyering.
You never — and I mean never — take money from a client trust account in order to pay expenses unrelated to that client. Just ask “celebrity” lawyers like Michael Avenatti or Thomas Girardi what stealing money from clients will do to your legal career.
If you find yourself in this scenario, do not pass go and do not collect $200.
Gather any and all evidence of this misconduct (being mindful of client confidences) and file an Attorney Misconduct Complaint with the California State Bar.
If you’re worried about losing your job… well, you’re probably going to lose it anyway when this attorney is eventually caught and prosecuted for this or other similar behavior. It’s far better to have refused to participate when the truth comes to light.
How to handle ethical issues in the workplace
There are a wide range of situations that might feel like an ethical mismatch between you and your employer.
Sometimes, it might simply be a difference of values. Perhaps your firm financially supports a political cause with which you strongly disagree, or maybe the managing partners strongly believe in taking extra time off to spend with family while you feel they are neglecting the firm’s clients.
In other cases, your ethical concerns are less subjective. Someone breaking ABA rules is not the same as taking an action with which you personally disagree.
Before you decide what to do, ask yourself these questions:
- Is this concern related to my personal values, a codified rule, or both?
- If this thing continues, will it put my job, mental health, or reputation at risk?
- Do I trust the firm’s decision-makers to listen to my concerns?
- If I talk to leadership, are they likely to consider a change?
Based on the answers you come up with, choose an appropriate course of action.
You might choose to do nothing for a mismatch of personal values that doesn’t put you at risk and isn’t likely to change, for example. Alternatively, you might decide to look for a job at a firm that better aligns with your personal values.
For violations of rules and laws, consider whether those should be reported internally or to a supervising authority like the bar. That decision will probably hinge on the severity of the problem and whether or not your firm’s leadership is in a position to take meaningful action.
It’s never easy to report the ethical violations of your colleagues. Ultimately, however, you need to do what is best for the clients and best for the profession as a whole.
Trust your instincts. You’ll get through these challenges and come through them with more experience and a fuller perspective on your career.
Conclusion
Navigating ethical issues in the workplace in the legal profession requires careful consideration and courage.
The practice of law holds significant responsibilities, impacting lives and livelihoods, and while uncommon ethical violations may arise, it is crucial for legal professionals to address them appropriately.
Handling these situations demands a nuanced approach. From addressing small infractions with direct communication or anonymous reports to reporting medium infractions to higher authorities, ethical considerations are paramount. In cases of severe misconduct, such as misappropriating client trust funds, filing an Attorney Misconduct Complaint becomes imperative.
Ultimately, the decision to act depends on a careful assessment of personal values, potential risks, and trust in the firm’s leadership. Upholding ethical standards not only safeguards individual integrity but also contributes to the overall well-being of clients and the legal profession.
