Tag: Malpractice claims

Uncategorized

Just Say, “No.”

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.”

Law Practice Management

Thinking About Client’s View of the Case Points to Need for Clear Communication

JEL23652-Blackford, Sheila P3 (2)  by Sheila Blackford   ©2010   The client has a view of the case that may not match your view. Beware! This view shapes the client’s expectations about the outcome of the case and the way you will handle everything. Everything from how quickly emails and phone calls will be returned, how often you will let them know what is going on, to how quickly you make the problems go away and how much you will cost.

The client has a much different perception of time because they live with their problem 24/7. It has kept them awake at night, unable to enjoy life or be productive at work. So now they have come to you. They sign your engagement/fee agreement letter, pay your retainer, knowing that next week you will file their case, contact the opposing party, send copies of everything to them, and be available to explain what it all means within a couple of hours. The client knows the case will be very unpleasant next month as there will be a trial within 30 days of filing paperwork with the court. If they picked the “right” lawyer, the night before trial, the opposing side will finally come to its senses and make a generous settlement offer. The next day the client will go to your office to sign the check which will be shared a third with the lawyer who will probably reduce it to just a fourth since it was such a simple case and didn’t require much effort on the lawyer’s part. Where did the client come up with this?! From books, television, movies, and their neighbor down the street.

Obviously, with the client coming in with a different view of the case and a different timeline, you need to do some educating about the case timeline, clarifying expectations and clearly communicating what you will be able to do for the client–all of which should be documented in writing.

If not, you run a very real risk of a malpractice claim based upon communication-related problems: failure to follow the clients instructions or to adequately inform the client in order to get informed consent.

Closely aligned in the lawyer’s misery basket is the risk of a bar ethics complaint for failure to communicate, ORPC 1.4, whether failure to keep the client reasonably informed about the status of the matter and promptly comply with reasonable requests for information or to explain the matter to the extent reasonably necessary to permit the client to make informed decisions about the representation. Both malpractice claims and ethics complaints for poor communication are avoidable misery!

Fee Agreements, Engagement, Nonengagement, and Disengagement Letters
Written fee agreements, engagement, nonengagement, and disengagement letters are a great place to start. I co-authored a chapter 6 in the Oregon State Bar’s “Fee Agreement Compendium 2007 Revision” with my boss Barbara Fishleder, “Retained or Not Retained–You May Need to Prove It,” in which we stress the risk management perspective of using these written documents. Chapter 6 happens to be supplied as a sample chapter on the Bar’s website so you can read it for free here. “Fee agreements and letters of engagement, nonengagement, and disengagement are crucial to effectively avoid malpractice complaints. These agreements and letters set the stage for the relationship and responsibilities between the lawyer and the client. They protect both parties by providing a clear, written description of what the lawyer is or is not going to do, how much it will cost, and when the lawyer expects to be paid. Many legal malpractice claims are successfully defended because the lawyer can produce a letter or signed agreement establishing that he or she did not have not have certain responsibilities to the client.

Using fee agreements and engagement, nonengagement, and disengagement letters need not be time-consuming, difficult, or offensive to the client. Most clients welcome and expect a clear, written description of the arrangement they have with their lawyer.”

Oregon lawyers can download samples of these engagement, nonengagement, and disenegagemet letters from the Professional Liability Fund’s website www.osbplf.org in Word or WordPerfect. See these categories under Practice Aids & Forms in the Loss Prevention section of the website menu.

Scope of Representation Letter
This is so important it deserves special attention. What do you propose to do for your client? Are you going to handle the Workers’ Comp issue or that “little tax problem?” Spell it out and be certain that the client understands. Otherwise, something very important is going to drop through the cracks and you will be blamed.

Understand that your client likely is very intelligent, but if under stress, even the most intelligent client will not act so. Sleep deprivation is stupefying. So be sure to get enough sleep yourself.

There is a great example of a “Limited Representation Fee Agreement” in the “Fee Agreement Compendium 2007 Revision” which will give you a clear idea of how carefully one must craft a document spelling out exactly what the lawyer will do and will not do for the client. It may be called a “Limited Representation Fee Agreement” but it certainly spells out the scope of representation quite clearly and serves as a good example for you. If you have a subscription to the Oregon State Bar’s “Bar Books” online library, you can find the “Fee Agreement Compendium 2007 Revision” there which is filled with great forms that are included on a CD-ROM in both Word and WordPerfect so that you can tailor the language to fit your client.

So I hope you craft your communication by starting with thinking about what is your client’s viewpoint of the case. It will inform how clearly you need to be.