31 July 2013

‪Q:

I recently had an issue pop up with one of the litigation files I’m working on. I’m really enjoying working on this file and the Senior Associate who “owns” the file is letting me do a lot of quite advanced work. I’m learning an incredible amount and I’m really grateful that he’s giving me this opportunity. 

The issue that popped up was a bit of a curly ethical issue but one that does pop up from time to time in the type of litigation the firm does. I wasn’t sure how to run with this particular issue so I spoke with the Senior Associate and asked him how he wanted me to proceed. 

Whilst his advice is within the boundaries of acceptable and ethical conduct, if I was to follow it I feel that I would be putting myself in an awkward situation. When I was discussing the issue with him I hinted towards being uncomfortable with what he was suggesting that I should do. Despite my (slightly weak) protestations he kept telling me not to worry about it and if I followed his instructions everything would be ok. 

I mentioned this to another junior colleague who has told me that the partner of the division we’re based in had specifically told him (my colleague) he should avoid doing something similar to what the Senior Associate is suggesting. Whilst this partner has acknowledged that the behaviour wouldn’t be unethical, the partner has told my colleague that it’s about protecting both the firm’s and my colleague’s reputation with other practitioners and with the court (if it did all go wrong). 

Whilst it is his file, the client knows that I am doing a large volume of work on this. I’m concerned that if something goes wrong it would be my neck on the block, particularly because the partner of that division has advised other colleagues not to do what I’m being told to do. 

So how do I deal with this situation? I don’t want to be pulled from the file because of the experience I’m getting, but I also don’t want to do something I’m uncomfortable with. I also think that if I speak with the Partner, the Senior Associate will not give me work in future as he might think I’m questioning him. 

Help?

A:

Hmm.  Tricky. The first thing to really check out is that the particular issue is actually ethical.  Call the Law Institute Ethics Hotline and speak to an ethics specialist.  You’ll be asked to give your details, but it is completely confidential. Make a note of the date, time, advice given and the name of the person giving you the advice.  Make some notes about the advice and the situation, who you have spoken with, and tuck this note away somewhere private and safe – in case it all does go pear shaped, you can show you sought independent, authoritative advice.

If the advice is that it isn’t ethical, you’ve got nowhere to go – you have to tell the Senior Associate and, if he insists, you have to at least excuse yourself from working on the file.  Make notes, notes, notes!

If it is ethical and you feel uncomfortable, there’s some choices you have to make:  You can make a time to see the partner, ask for confidentiality and fly a ‘hypothetical situation’ past him/her, again making some private notes with lots of details. Or if you think this is a threat to your relationship with the Senior Associate or even to your employment, make notes, notes, notes of your conversation with the Ethics Hotline and how you feel about the situation (yes, that IS important!) and put them away somewhere private, again just in case!

‪Your instincts are spot on! Big ethical breaches are clear; the ones that sit closer to the edge less so. Never ignore that little voice, the uneasiness.  This is usually the first sign that something isn’t quite OK or at the very least points to something that needs a little more investigation. As you practice over time, tuning into your instinct becomes easier.  You are well on the way! Peggy.