A Three Point Short Course in Preventing Legal Malpractice.
You would think that lawyers would learn! Almost without exception, the most
common legal malpractice grievances filed every year against attorneys are allegations of:
- Failure to communicate, and
- Improper withdrawal or termination of representation.
The solutions to the grievances are not difficult. Common courtesy and
attention to the job to be done would prevent most grievances. The American Bar
Association= s Model Rules of
Professional Conduct, and state rules govern those common complaints, and if
followed, would prevent the legal malpractice and the subsequent complaints. Let=
s review, and look at a few practical tips.
# 1. Neglect: the different worlds in which we think we live.
We all tend
to make decisions based on the world in which we think we live
C which may not be the world in which
the client and other lawyers live. One lawyer's "reasonable diligence and
promptness" is another lawyer's "sloth, conscious disregard, and untimely
responsiveness.@ As a result of the
different worlds in which we think we live, the ABA=
s Model Rule on the subject is wimpy and ineffectual as a teaching device:
A A lawyer shall act with
reasonable diligence and promptness in representing a client.@
Client-Lawyer Relationship, Rule 1.3 Diligence
So C if your world and mine are
different in what we think is A
reasonable diligence and promptness@ ,
then what is the test you should use to judge yourself. Hopefully, if you
understand a simple test, you will consciously take actions that will prevent
charges that you have been A
neglectful@ (i.e., full of neglect)?
If you had a dread disease, would you consider a medical doctor acting with
your speed and client-focus be a doctor treating your dread disease with
"reasonable diligence and promptness? I suggest that the next time you open a
file (paper or on the computer) take a moment to consider the world that client
lives in, with only one legal matter to think about. To your client, his/her
legal matter is a dread disease, to be avoided or cured. You as a patient can
understand that the doctor has other patients, and cannot treat or work on you
each day C but you want initial
choices and treatment to start quickly, and you want assurances that every week
or two your dread disease is being treated. Translate that
over to you legal business practices. Start initial choices and action quickly,
and every couple of weeks either work on the matter or do something to assure
your client that he/she has not been forgotten by you. (E.g., something as
simple as sending an information copy of documents sent or received can give
that assurance that the he/she has not been forgotten.)
If you want to avoid unhappy clients, you have two choices. One, handle the
matter as the client expects it to be handled. Two, if you think the client=
s world is unrealistic, it is up to you to educate the client on what is going
to be the diligence and promptness you are going to render. Either (one) go into
the client= s world to judge
A diligence and promptness@
or (two) educate the client on your world of
A diligence and promptness,@
and reach agreement that your world= s
view of progress is the standard.
Or, here is another idea. Think about the most strict judge in your district.
Not good old Judge Jones, who grants extensions of time without anyone asking
for them. Think about that Judge Corliss the chief judge assigned to come into
your district with the assigned job of getting the trial calendar whittled down.
Judge Corliss C he is the judge who
gave you sixty seconds in a motion hearing to state your point and then
dismissed your motion as A
improvidently filed@ because you
failed to follow the rule on page margins. That Judge Corliss lives in a
different world than you do. There, have you dredged up a mental picture of that
judge? Good. Keep your Judge Corliss in mind. Now, when you have finished
reading this article, open one of your client files (a paper folder or a
computer file). Really, try it: open one of your client files right now. Stop,
take a moment, ask yourself if you are acting with the
A reasonable diligence and promptness
in representing a client,@ your Judge
Corliss would expect. For example, is there a case in which you should tell your
client to preserve electronic evidence? What would Judge Corliss think about
what you have done to date?
Using the alternative A worlds@
suggested above can lend urgency to your vow to
A take a look at what we need to do on
some of those cases we have not worked on this month.@
# 2. Failure to communicate: communicate to be a lawyer that clients rush to hire.
The ABA's Model Rule on communication
is not a good teaching tool. By its length the Model Rule has prevented lawyers
from educating lawyers on the Rule= s
three most critical items. Those three items are all that is needed in 99% of
real world practice. The following three sub items should be thoughtfully studied
by every lawyer (that's you), with a
few moments= reflection on exemplar
cases he/she is presently handling.
(a) A lawyer
shall:. . .
- keep the client reasonably informed about the status of the matter;
- promptly comply with reasonable requests for information; and . . .
- (b) A lawyer shall explain a matter to the extent reasonably necessary to
permit the client to make informed decisions regarding the representation.
Client-Lawyer Relationship, Rule 1.4 Communication
Notice that those three items are items stressed by J. Harris Morgan and Jay
G. Foonberg in their classic How to Draft Bills Clients Rush to Pay.
Building the lawyer-client relationship by communication is not only a key in
doing the job attorneys are supposed to do, it is also the key to better fees
and happier clients.
Why don= t you become one of those
lawyers that clients rush to hire? Right now, get out your list of client
matters. Is there any client that you have not communicated with in the last 30
days? Either pick up the phone, or write a short email to the client
C before you leave the office tonight.
# 3. Withdrawal and termination.
There are certain times when a lawyer is
required to withdraw from representing a client. Those rarely occur, but law
schools spend an inordinate amount of time teaching about those instances when
the lawyer is legally required to withdraw. I will not talk about those here.
Let= s talk about the three classes
of withdrawals that most often occur in real-world practice. They are
- Class A. The lawyer has hopelessly neglected the matter,
- Class B. The matter is hopeless of success for the client, or
- Class C. The lawyer is not being paid, or is not likely to be paid.
Unfortunately, the root cause of the Class A withdrawals should not occur:
lawyers should not commit malpractice by neglecting the job entrusted to them.
The negligence involved in these withdrawal instances frequently is compounded,
because the attorney commonly seeks to disguise his/her own neglect and points
to other reasons for withdrawal (in the withdrawal letter or petition).
When a lawyer has neglected the matter, he/she is in a conflict of interest
situation with the client.
That last sentence above is important enough to be reread. The neglectful
attorney is trying to prevent a malpractice claim against himself, but the
client has a right to know:
- what the attorney has done that is neglectful, and
- that the client has an option to seek alternative representation
including advice on whether to bring a malpractice claim against the
The client may have a right to require the ineffective attorney to continue,
or it might be financially advantageous to the client for the ineffective lawyer
to straighten out the mess himself. Nevertheless, the neglectful attorney should
consider a full disclosure and falling on his own sword by a withdrawal request
letter to the client or a petition to the court for permission to withdraw.
In the class B withdrawals above (success for the client is hopeless, but the
client insists on continuing the matter), do not simply say the case is a bad
one and therefore you want to get out of it.
Refer to both the ABA's Model Rule 1.16 Declining Or Terminating
Representation, and to your own state rules any time
C repeat, any time
C you are even barely thinking about
withdrawing from a case. Looking at both the ABA Model Rule and your own state
rule will add depth to your analysis of what you can and should do. Usually, you
can only withdraw only if withdrawal can be accomplished without material
adverse effect on the interests of the client, and one of three items exist:
- The client has used, or is using the lawyer's services to commit a crime
or fraud. (Consider phrasing your termination of representation as being
because it would be a fraud on the court to continue to pursue it when court
rules regard the lawyer= s
participation and signatures as certifying that the cause is reasonable.)
- The client insists upon pursuing an objective that the lawyer considers
repugnant or imprudent or with which the lawyer has fundamental
disagreement. (Hence, continued representation would be ineffective because
of your own mental conflict with the client's desires.), or
- The representation has been rendered unreasonably difficult by the
client, (usually because the client fails to communicate with the lawyer or
falls to fulfill an obligation to the lawyer regarding the lawyer's
services) and has been given reasonable warning that the lawyer will
withdraw unless the obligation is fulfilled.
If the withdrawal is because the client is not paying, take note. Many
states, in many instances, will not let a lawyer withdraw simply because he/she
is not being paid. It is true that some states, e.g., Texas, provide for
withdrawal if "The client fails substantially to fulfill an . . . obligation to
pay the lawyer's fee as agreed and the lawyer has given reasonable warning that
the lawyer will withdraw unless the obligation is fulfilled." But many states do
not regard failure to pay fees as a reason for withdrawal unless contractually
agreed upon as a cause for withdrawal. Therefore: whatever state or federal
district you are in, as a matter of prudence include a clause in the initial
attorney-client fee agreement that specifies an option to withdraw for failure
to pay fees or costs. Then the failure to pay contractually becomes "an
obligation to the lawyer regarding the lawyer's services" for which the court
can order contractual termination of services.
Every time you terminate representation:
- Take steps to the extent reasonable practical to protect a client's
- Always give reasonable notice to the client, allowing time for employment
of other counsel,
- Always surrender papers and property to which the client is entitled,
(even if the law of your state allows you a lien or allows you to keep
client= s papers, never keep any
papers or property where retention will prejudice the client in the subject
matter of the representation).
- Always refund any advance payments of fee that has not been earned.
This Three Point Short Course in Preventing Legal Malpractice focuses on:
||preventing charges of lack of timeliness and neglect, by considering the
fact that your world of diligence may not be the world in which you will be
||communicating with the client,
||withdrawing only with extreme care and consideration of its proprietary,
and, terminating only if there protection of the client=s interest.
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