image   by Sheila Blackford   ©2015   One of the most important things you may need to tell your existing and potential clients is, “no.” When to say no can be difficult for some lawyers to determine. With memories of the 2008 economic climate and awareness of overhead, many lawyers struggle with turning away business. If there is a person with a problem, the lawyer says yes quickly without consideration of anything but the lawyer’s need for revenue or gratitude. If the scenario sounds familiar, consider for a minute, that you may be turning away a malpractice claim or an ethics complaint. Then saying no isn’t so hard, is it?

Lawyers have a duty of competence. If you aren’t competent, then you are supposed to get competent or associate with someone who is competent. You may find yourself in a situation where neither seems to be an option. I talked with a lawyer who was relatively young in law practice experience and did not have the level of experience, knowledge, or adequate capital to handle a medical malpractice case. A pro bono one! Happily, the lawyer was able to say no and get the case off to someone with the current skills and resources to help.

Lawyers have a duty to communicate with their clients. Sometimes, what needs to be communicated isn’t good news, such as communicating that upon review you have discovered that the case has no merit and not a chance of prevailing at court. One lawyer found this out after saying yes and engaging in a lot of puffery about being able to get the client money. Understandably, the lawyer was reluctant to say, no. No case. No ethical way to pursue this. That was a hard no. Likely, the lawyer toned down enthusiasm with the next potential case until investigating the facts revealed worth pursuing.

Lawyers have a duty to safeguard client property. Some clients  push for their check to be cut now. But if the funds for the client are not actually in the trust account, because the issuing bank of the check has not transmitted funds to the Lawyer Trust Account, then there are no client funds to be disbursed yet. You otherwise are robbing Peter to pay Paul. Best to say, no, the funds are not yet available and they will be disbursed to the client just as soon as they are available.

Lawyers have a duty to not take on a case, or if engaged to withdraw from representing a client, if the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client. What if the lawyer has represented the client for a long time and the client wants the lawyer to continue to finish up the matter? What if the lawyer cannot see or even concentrate because of the pain of treatment for terminal cancer? What if the lawyer has been admitted to a drug and alcohol treatment facility for detoxing or in a lock down for mental illness? The client may want the lawyer to continue but if the lawyer’s physical or mental condition render the lawyer incapacitated, then the lawyer must say no, not now. Hopefully the lawyer’s cell phone has been collected at the hospital door, but I have heard of clients calling and calling and calling, despite being told that the law office is temporarily closed.

What about those clients who are friends? How easy it is to get into a situation where you continue to do legal work for free because it is your friend. Some lawyers get themselves too busy helping friends, and friends of friends, with myriad legal matters that are beyond the lawyer’s ability to properly attend to with the competence and diligence required. You don’t get a pass on ethics violations or acts of malpractice just because it is a friend who is not paying for legal services. You undertake providing legal services, you need to provide the services ethically and without committing malpractice.

Comment 5 to ABA Model Rule 1.4 (Communication) states “…The guiding principle is  that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client’s best interests, and the client’s overall requirements as to the character of representation.” Make sure your clients are being given reasonable expectations. Hold the client’s best interest foremost in mind and you will do the right thing, even if the right thing is to say, “no.”

Posted by SBlackford

Sheila Blackford is an Oregon attorney who has been a practice management advisor for the Oregon State Bar Professional Liability Fund since 2005. She loves writing, riding her horse, and taking long walks with her husband and their dog.

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