The purpose of lawyers discipline is to protect the public from lawyer misconduct and to deter other lawyers from similar misconduct. Every jurisdiction has an Office of Disciplinary Counsel to help protect the public, and most lawyers’ think of the Office’s primary duty is to discipline attorneys. However, the Disciplinary Counsel’s office often plays a vital role in preventing client grievances in several ways, including: answering public inquiries, resolving simple disputes such as who gets the attorney file, and encouraging good communication between lawyers and clients.
So it continues to be difficult for those lawyers who handle lawyer discipline matters is to understand why so many ethics complaints against lawyers involve issues that are the most easy to prevent. Specifically, allegations of lawyer incompetence, disorganization, having a conflict of interest or not properly communicating with the client dominate many of the ethics complaints clients make against lawyers when they are unsatisfied with their matter outcome.
Ethics complaints against lawyers come in all varieties, but a few types of complaints dominate the matters that lawyers involved in lawyer discipline work on every day. Below is a look at some of the most common ethics complains asserted by clients against the lawyers they chose to represent them and advice about how to prevent the complaints from happening in your practice.
Competence and Diligence
In the rules of professional conduct, Competence and Diligence are treated separately, but together, they represent so many of the things that clients expect from lawyers. Moreover, they also represent a significant number of client complaints when clients are left feeling the lawyer acted wrongly because they were unorganized or the lawyer’s procrastination lead to client neglect.
ABA Model Rule 1.1 Competence is short, and to the point. But it is the first rule in the book for good reason. It reads:
“A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”
Many lawyers who read this rule focus on the “legal knowledge” and “skill” requirements, feeling satisfied that they have the capacity of understanding to properly represent a client. However, it is the “thoroughness and preparation” part of the rule that most often is the basis of a dispute between a client and their lawyer when competence has come into question. Clients who feel their lawyer didn’t fully prepare for their legal matter will pounce on a lawyer if the outcome is unsuccessful.
As if Rule 1.1 Competence needed some bolstering on that matter, ABA Model Rule 1.3 Diligence is close behind simply stating:
“A lawyer shall act with reasonable diligence and promptness in representing a client.”
Together, the rules on competence and diligence reinforce the fact that as a profession, lawyers need to always be organized and mindful of their ongoing legal matters. For lawyers who have a good understanding of substantive law and legal procedure, but suffer from lack of organization, good office systems including a well-organized filing system and top legal software is available to keep the lawyers matters organized and on track.
Staying organized is sometimes as simple as having a well organized, consistent filing system for your legal matters. There are multiple ways to organize legal files depending on the practice area, but consistently, those who have good filing systems insist on the same basic things:
- The filing system should be centralized so that the information is always available to anyone authorized to handle the matter in the firm;
- The filing system should be consistent so that there is a uniform look to the way the file is organized and firm employees can always know what has been done on the matter by a simple review of the file;
- The filing system is docketed so that key personnel and the lawyer responsible for handling the matter will always have the matter in rotation, with multiple calendar dates assigned to each file to avoid having the matter “fall through the cracks;”
- Each file will have a “Notes” section so all aspects of the legal matter will be recorded in chronological order, always preserving for the record the history of the legal representation.
As for top software systems, case management software is in a class of its own for organizing a law office that may otherwise be in disarray.
Case management programs perform two basic functions for a law office. They organize client information in a data base so any member of the firm can get detailed case information at any time. Also, case management software serves as the company calendar, keeping the attorneys and staff on time for every appointment and due date.
The concept of merging client data with a calendaring system is not unique to case management software. Many generic office products like Microsoft’s Outlook perform that function for general business systems. However, case management software goes beyond basic scheduling software by offering overlapping schedule reminders and other feature that only an attorney could want (like quick conflict checking).
Whereas most generic office products organize data with the assumption that the user has just a few ongoing projects at any one time, case management software recognizes the principle that an attorney may be responsible for hundreds of cases simultaneously, each with its own timeline.
A basic case management system will replace paper calendars, rolodexes, timesheets, notepads, manual tickler systems, and telephone message pads. More ambitious case management products will attempt to replace all other accounting and invoicing systems as well as all the client files.
Most importantly, a case management system will streamline your office automation process so you only have to enter certain client information once. The data will automatically merge with other information systems such as time and billing products, and document assembly programs, so you don’t have to re-enter the client data in any other office system.
When shopping for a case management product that’s right for you, ask yourself:
- Do I like a lot of client information on the screen, or do I prefer something that is simple and easy-to-learn?
- Do I plan on merging the client data with other data-intensive programs like time and billing, and document assembly programs?
- I may like a program that is heavy on features, but will my staff be more inclined to participate in a user-friendly system?
- Am I committed to finding a whole new way of gathering, storing and accessing basic client information?
Case management software typically ranges from $300 to $500 per user license (which means anyone in the firm who would be viewing the data available in the program). Online cloud-based case management systems are also available for $30 to $50 per month. The software is not inexpensive, but it can often be worth the price if it is the tool you need to transform your office into one that is well-organized and serving the customer’s needs.
Conflicts of Interest
The purpose of a conflicts check is to ensure that your commitment to your client’s matter will not be distracted by your commitment to any other person. Many attorneys believe that this commitment can be upheld by a brief moment of thought, comparing their client’s circumstances to that of the firm’s other clients, at the time they are being retained for their services.
The ABA Model Rule 1.7 Conflict of Interest: Current Clients provides the following guidance on identifying a relationship that may pose a conflict of interest for the lawyer:
“(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.”
The exceptions to Model Rule 1.7 are very specific:
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.
On top of the duties requiring lawyers to identify conflicts of interest involving their current clients, the rules also address the conflicts that often arise involving the lawyer’s former clients in ABA Model Rule 1.9 Duties to Former Clients.
Professional liability insurers and risk management professionals continually stress the importance of a conflict-checking system in law firms to help identify potential conflicts at the time the attorney-client relationship is established. Consistently, it has been shown that a check for conflicts-of-interest that does not include the use of a thorough list or database will leave the firm vulnerable to an embarrassing, and potentially negligent conflict-of-interest problem.
Establishing a reliable conflict-checking system in your firm can be a relatively easy thing to do. However, the system is only as good as the information that is put into it. Therefore, creating the conflict-checking system and maintaining it should be viewed as an ongoing and permanent commitment to securing your client’s confidence and your devotion to their best interests will never be questioned.
The elements necessary for conducting an effective conflicts check in your law practice are:
- Establishing a thorough, well-maintained list of names;
- Ensuring that the conflict-checking procedure becomes a part of firm’s routine;
- Everyone in the firm is trained in the procedure and involved in the system.
The best conflict-checking system is one that will work, and that the members of the firm will find easy to use and maintain. There is nothing inherent in a computer-based conflicts program that makes it superior to a well-maintained manual system. However, since a computer-based conflicts system can conduct a thorough check rather quickly, it is more likely to be used routinely by the firm, and it is less likely to overlook a single name buried in a large database.
In a forms-based conflict system, you search for conflicts by checking a list of the firm’s clients (current and former), a list of “other parties,” and a list of lawyers who have represented other parties involved in your client matters. These searches must be conducted prior to the new client signing a retention agreement with your firm.
The primary conflict review occurs when you check the client list. You are looking to see if any person who is an adverse party to a new matter is currently being represented by the firm in another matter, or has been represented by the firm in the past.
If a review of the client list reveals no potential conflicts, you should then review the other parties list and the lawyer list to see if there are any relationships involving the firm’s current or past legal matters that the new client would probably want to know about.
A startling number of malpractice claims and ethics complaints come from matters where the client alleges that the lawyer proceeded to handle a legal matter without fully informing the client about the potential hazardous outcome, or that the lawyer didn’t listen to the client’s concerns before proceeding.
ABA Model Rule 1.4 Communications addresses the lawyer’s fundamental duties when communicating to a client about the progress of their case:
(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(e), is required by these Rules;
(2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
(5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
For lawyers involved in transactional matters, properly communicating to the client about the potential hazards of a legal strategy sometimes can get fairly complicated. The outcome of the case sometimes leaves the attorneys wondering, are lawyers doing all they can do to ensure that the client has been fully informed about the risks of the transaction?
If the client gets mailed lengthy documents that are single-spaced, small print, with lots of clauses and a note that says, ‘sign here,’ the lawyer is not really doing their job of explaining what the client is getting into. Most not involved in transactional matters wouldn’t fully understand what some typical transactional documents say, so why should lawyers expect the client to have a better understanding?
It is important to educate the clients fully about what the risks are, and to break them down in simple terms. Transactional attorneys recommend that attorneys should sit down with their clients and fully identify the terms of the transaction and the potential hazards associated with it.
If a client has follow-up responsibilities a firm should always send out a letter spelling out exactly what their obligation is. A letter to the client specifically identifying the scope of the attorney’s engagement in the matter is recommended.
Also, an attorney who has not been hired to provide an opinion on the merits of a transaction should state in the letter, “You are NOT expecting me to opine on whether this is a good deal.” Stating those facts in simple terms is necessary to make it perfectly clear to the client that the lawyer is not giving business advice.
Ethics complaints claims involving client relations are among the most preventable of all legal malpractice actions. For non-transactional matters, the claims usually involve a misunderstanding in the expected outcome of a matter, or the client’s lack of understanding regarding the legal process they are involved in.
The key to preventing most such claims is to continually be communicating with the client regarding the status of a matter—even if there are no file activities going on. Nothing frustrates a client more if they have not heard from their attorney for some time regarding the status of their matter. Clients often need to be made aware that the lawyer is still working on their matter, and although there may be a break in the client activities, a communication to the client that the break is an expected step in the legal process reassures the client that the lawyer has not neglected their matter.
Essential steps for ensuring that a client is fully aware of the important provisions of a transaction include:
- Fully document the key terms of the transaction or agreement that the client is entering into, explaining the risks in simple terms that the client can understand;
- If possible, sit down with the client and review the writing that identifies the terms of the agreement and the risks associated with the matter.
- Ask the client what is his or her understanding of the agreement. They may tell you something that is contrary to what is your understanding of the deal, giving you an opportunity to head off any misunderstandings after the transaction is complete.
- Memorialize for your legal file any discussions you have had with the client about the key provisions of the transaction and the risks associated with entering into the agreement. Such a memo to the file can be crucial if there is ever a dispute between the attorney and the client about the advice that was given.
- Identify in writing the scope of the lawyer’s involvement in the legal matter to avoid any confusion as to what the lawyer was hired to do. If the lawyer has NOT been hired to provide an assessment of the merits of a transaction, such a statement should be included in the engagement agreement in clearly identifiable terms.
- •Always stay in communication with a client regarding the status of their matter. Every means for communicating, whether it is a phone call, an email, or a description on an invoice is essential for the client to understand the ongoing status for their matter.