by Sheila Blackford ©2016
All lawyers must practice in two areas, their substantive area and ethics.
I remember the chit chat before the first day my ethics course in law school. The consensus was that it was an unnecessary class but would be a welcome break from the substantive law classes. I kept my opinions to myself as I had already found the ABA Model Rules on the Internet and devoured them. I liked Ethics and found the hypos a breath of fresh air, real life dilemmas sure to arise. Looking back almost twenty years later, I think it was the most helpful class as no matter what practice area lawyers get or transition into, ethics is always a plus 1 that stays consistent.
In Oregon, bar complaints are directed to the Client Assistance Office for evaluation of whether there has been a breach of ethical duties that need to be referred to the bar’s disciplinary counsel. Triage. They deal with a lot of complaints from clients and third parties. As long as the CAO has issued their reports, the main complaint areas revolve around communication, neglect, and fees. How easy to fix these problems!
ORPC 1.4 Communication. (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
Reasonably Informed. Some lawyers bristle at this. Clients want to know what’s going on with their case. It is a pretty easy standard to meet, though beware the subjectiveness of what is reasonable. In the lawyer’s world there are many client matters to be concerned with, some with more pressing urgency than others. In the client’s world, there is only one case: the client’s. Communicate ahead of time how you will communicate, how often you communicate, and when you will communicate. Provide a roadmap of the client matter so that the client understands the real life process of a lawsuit. On t.v. They are in court before the second commercial and the case is settled before the closing credits run. What a shock to find out how long it really takes.
Be clear with the message communicated, I will call you back later, meaning what?? Doubt this is a big deal? Those of you who are parents should think back to your call to the pediatrician when your baby was sick. I was told the doctor would call back and I was frozen for hours next to the phone. Fear clutched at me and I wouldn’t have wanted to eat even if I had walked away from my post into the kitchen. “Teething, just teething could bring on a fever and wailing?” Teething and colic were frightening events to a new parent. The tone of voice delivering the telephone diagnosis just made me feel more distressed and angry to have waited so long for a return call. The doctor was busy with urgent matters and mine concerns were insignificant. Your client feels the same often. If I’d only known that the doctor returned calls from 11:30 to noon and 4:30 to 5:00 or the next morning from 7:30 to 8:00.
Care of your client is easier when you explain timelines ahead of time even though all divorces don’t proceed in the same timeline. Do yourself and your clients a favor by setting forth what happens in a typical divorce proceeding, what can cause delays, when the client should call to report what just happened. Otherwise you may get called when the future ex spouse has taken the bathroom rug. Seriously, one family law attorney shared this very annoyance. I helped her to compose a Call Me Do’s and Don’ts list with a few funny examples thrown in to lighten things up. A divorce is traumatic and emotional and people going through a divorce aren’t going through their best times. And especially for personal injury suits, there long periods when nothing is happening. Because your client is not perched on a chair day after day seeing that nothing is going on, really, you should explain this ahead of time and use simple Status Update forms to quickly check in with your client and reassure you haven’t forgotten your client exists. Think about it: your client is in pain physically, mentally, emotionally thinking about this pain 24/7. A Status Update sent out monthly or bi-weekly is welcome reassurance that you haven’t forgotten. It’s even better than calling your client’s home at noon on a work day to leave a voicemail that all is well, you’re just waiting to receive medical records requested last week from the doctor. Scan that Status Update or bcc yourself or your legal assistant to preserve a record of your client communication.
Reasonable requests for information are handled the same way. If your client is too demanding, you have failed to properly set client expectations. I told my elder law clients in my written fee agreement that I would provide them copies of everything, which comprised their client file. I gave them a sturdy client file with a copy of their signed fee agreement and with papers write down all their questions so they didn’t forget something they wanted to ask me. I told them to bring this file to every client meeting and to put their copies into it. Documents were hole-punched and stamped “For Your Client File, No Action Needed.” It cut down on multiple phone calls to tell me something or ask me a question they had forgotten earlier. I adapted this information management tool from teaching sixth graders how to stay on top of their assignments. See if you can adapt it for your own clients.
ORPC 1.3 Diligence. A lawyer shall not neglect a legal matter entrusted to the lawyer.
First thing to consider about client complaints about neglect: communicate don’t ignore your client or your client’s matter. Keep track of deadlines, even those imposed by your client, and use reminders, at least one reminder but this is frequently increased to three because the deadline requires adequate preparation time. Don’t wait until the last minute to do something because technology gremlins love causing printer malfunctions or crashing software programs when either are guaranteed to raise your stress level. Allow the time it takes to avoid poor performance. Notice the word entrusted. A client matter — no matter how small –has been entrusted to you by the client. It is always a big deal to your client. One of the biggest dangers of taking a case out of a desperate need for cash flow is that you may not like that client or the client matter. And what does that encourage? Putting off dealing with the client or client matter. You know that client file languishing on your credenza, office chair, or floor? Tackle it! Sooner than later. Get it done or fire the client before it is too late and you are stuck or have a bar complaint for neglect or a malpractice claim for missing a deadline that causes harm to your client. It is interesting to note that many follow up inquiries after a malpractice claim reveal that the lawyer would not have taken on the case in retrospect. Save yourself and your client needless stress: though shall not procrastinate or neglect a client matter. See the PLF practice aids for calendaring and docketing along with checklists for the substantive areas of law. you need checklists so you don’t overlook anything which is neglecting to do what you are supposed to do and when you are supposed to do it!
ORPC 1.5 Fees (a) A lawyer shall not enter into an agreement for, charge or collect an illegal or clearly excess fee or a clearly excessive amount for expenses.
Notice that a fee is evaluated for being in compliance at three distinct times.
1. Enter into an agreement is when you form your contract, verbal (foolish) or in writing, at execution of your written fee agreement (wise).
2. Charge for fees or expenses. Sending out your monthly billing statement.
3. Collecting for fees or expenses. When client pays you.
All three times must be reasonable. What is reasonable? See Rule 1.5(b). Review the Economic Surveys on the OSB website which provide details about what is customarily charged, where, and by whom. http://www.osbar.org
Enjoy your practice of XYZ law and ethics!