Avoid Ethics Complaints by Taking Notes

Despite lawyers’ efforts to get the best possible results for their clients, sometimes clients are dissatisfied. Their disappointment is often accompanied by finger-pointing; surely someone must be to blame for the outcome of the case besides the client or the opposing party. When the lawyer ends up in the path of that finger, the most common complaint is that the lawyer rarely, if ever, talked to the client and that on the few occasions the lawyer did talk to the client, the lawyer never let the client know what bad events were about to unfold.

For the lawyer who has tried to do everything right, defending against such allegations might be unpleasant but not threatening. Of course the lawyer talked to the client. Quite frequently, in fact. And yes, the lawyer is certain she warned the client about the possible outcome. The client was given the choice of how to proceed and, unfortunately, made a poor choice.

“Sounds great,” says the investigator from the attorney discipline office. “Can I see your notes of those conversations?” “Well, I’m not sure I have notes of every conversation . . . ”

Most of my practice is devoted to defending lawyers against allegations of unethical conduct. As a result, I often review my lawyer-clients’ files for the matters they have  handled. This includes not just the substantive documents, such as pleadings, correspondence, financial documents, etc., but also the parts of the file that one typically does not see in the course of discovery, such as the client questionnaires, the e-mails, the time records, and –hopefully– the notes.

In the last few months, however, finding notes in my lawyer-clients’ files has become the exception rather than the rule. I do not doubt my clients when they assure me that there were multiple phone calls with the client and at least a couple of meetings, but there are no specific records of those contacts: when they took place, what was said, how long they lasted. The ethics investigation is suddenly at risk of being reduced to a battle between “Did not!” and “Did so!” The disgruntled client may be regarded as having a legitimate gripe.

Why bother taking notes?

The value of taking notes should not be underestimated. Beyond providing a first line of defense against a client’s ethics complaint, notes can be helpful in tracking previous conversations with a client. The client does not then have to repeat information or suspect that the lawyer cannot remember the client’s case. For clients who challenge a bill or later demand a copy of the file, the notes fill in the gaps between written contacts with the client and show how attentive the lawyer was to the client’s case (under most states’ ethics rules, your notes are part of your clients’ files and belong to them, so avoid excessive doodling and gratuitous comments about your clients’ mental health). Your notes will also provide the chronology of events on which you may need to rely when explaining your decision to withdraw to the client or the court.

Contingent and flat fee lawyers who eschew time keeping seem to be more prone to avoiding note-taking, perhaps a byproduct of their attempts to streamline their practices. Lawyers who do not keep time records are probably in greater need of good notes than lawyers who bill hourly and can use their timesheets to track very brief conversations with clients, some of which may be written-off. The inconvenience of taking notes while talking to clients from a cell phone while walking, driving, or waiting for some other appointment to begin may have led many busy lawyers to get out of the practice of taking notes. Whatever the reason, the time lawyers save on the front end can come back to bite them on the other.

Making record-making a habit

Note-taking should be a habit, hopefully one developed early in a law practice. Personally I think that hand-written notes are the most efficient way to make a record of a conversation with a client, but it doesn’t matter whether the notes are handwritten, entered into your practice management software, typed into a Word document, scrawled on your iPhone or iPad, or dictated to your legal assistant. The goal is to create a record of the date and time that you talked with the client and, even for short conversations, some indication of the subject matter that was discussed. Lawyers should do the same for conversations with opposing counsel, witnesses, court clerks, prospective clients, supervising lawyers, and so on.  If you are talking, there should be a notepad or a keyboard in front of you.

In addition to the client’s name, the date, and at least some brief description of what the conversation, it is a good idea to note whatever advice or instructions the you gave the client. It is also wise to spend an extra few minutes after the conversation ends to fill in details you did not have time to record and clarify on paper the advice you orally gave the client. At the end of the conversation or meeting, I typically also record in the margin the length of the conversation, usually in tenths of an hour. This can help corroborate the fees you charged a client and refresh your recollection years later about the length of a conversation.

Taking notes is a lot like wearing a seat belt: 99% of the time it probably doesn’t matter whether you do it or not but it is the other 1% that you are preparing for. Take notes. The license you save may be your own.

(Photo: http://flic.kr/p/8HNqQi)

Wash That Client Right Out of Your Hair

Many of the posts on Lawyerist focus on how to get good clients; we spend very little time talking about how to get rid of bad clients. As a general rule, the goal is to keep the clients around once they hire you. Nevertheless, for some clients, the lawyer’s advice should be limited to “don’t let the door hit you on the way out.”

Lawyers are typically reluctant to withdraw from representing clients. Several of the most important principles of lawyer ethics —confidentiality, avoidance of conflicts, holding funds in trust— are built on the idea of loyalty to the client. Many old school lawyers believe that once you agree to represent a client, you stick with them until the bitter end, even if you are the one left with the sour taste in your mouth.

The Model Rules of Professional Conduct, however, do not require a lawyer to go down with the client’s ship. To the contrary, Rule 1.16(b), which has been adopted by most jurisdictions, says that a lawyer may withdraw from representing a client if the “withdrawal can be accomplished without material adverse effect on the client.” Note that the rule does not require that there be no adverse effect on the client at all, just that the effect not be material. Presumably, every withdrawal before a matter is completed will have some adverse effect on a client – the hassle of finding a new lawyer, getting that lawyer up to speed, some additional cost to the client, etc.

Often, by the time the lawyer gets to the point of wanting to withdraw, the matter will have progressed far enough that there will be some material adverse effect on the client. In those cases, the lawyer must to look to the other subparts of Rule 1.16(b) to see if the lawyer‘s reason for withdrawing is sufficient to overcome the material prejudice to the client (and, of course to determine whether any presiding court will allow the lawyer to get out). Conflicts of interest, client fraud, and the client’s refusal to cooperate with the lawyer may fall into this category. But there are many cases in which a lawyer has discretion to decide that his or her time would be better spent elsewhere. Here are a few examples:

Do you hear that barking sound? When that car accident case came in, it sounded great. Your injured client was the breadwinner in the family, the other driver was clearly at fault, and there was lots of insurance coverage to go around. As you started gathering information, however, you learned about the client’s pre-existing medical conditions, spotty work history, faulty recollection, and fondness for the drink.

Sure, you could stick with the client and try to get the best deal that you can under the circumstances, assuming that you can readjust the client’s expectations from a high six-figure recovery to something less than the cost of a new car. It is not unusual though to see a lawyer avoid a tough conversation with the client, hope that the client’s injuries will “mature” (a real consideration in some cases, less so in others), and let the file collect dust in a remote corner of the office. These are the types of files that turn into ethics complaints for neglect or non-communication. Instead, if the case is pre-suit and not close to a statute of limitations deadline, you can withdraw.

Sorry, I forgot my checkbook. The first few months of the attorney-client relationship are critical for figuring out whether the client is going to pay the lawyer’s bills. Human beings are remarkably consistent creatures. Clients who pay their bills within a week or two of when they get them are likely to keep doing so. Clients who need three written reminders and a phone call, or who promise to pay and do not follow through, will maintain that pattern throughout your representation. When clients fall behind on their bills, lawyers may become frustrated or angry and cross some ethical line in trying to collect their fees.  Let the next lawyer be the one who ends up representing your client for free. Get out before the receivables start aging.

Talk to the hand. You (hopefully) have several dozen clients. Your client has one lawyer. Some clients are oblivious to this imbalance. Combine that with the high emotions of a custody battle and you may get a client who calls you multiple times a day, demanding action against an estranged spouse. Emotional, needy clients not only eat away at your time but they drain the energy of your staff and may even be abusive when they do not get what they want. Sure, there are ways to manage your client communications. Some clients though are so demanding that they will overwhelm you. Withdraw from representing the problem clients and save your energy for the rest of your docket.

If you do decide to withdraw, keep the explanation simple. Avoid the urge to provide the client with a laundry list of his or her faults. And be generous in refunding fees. That way you look less like the stereotypical greedy lawyer and the client has some funds to try to find a new lawyer, likely one who is less savvy than you are about choosing which clients to represent.

Wash That Client Right Out of Your Hair is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.

A Family and Friends Plan for Your Law Firm

family dinner11 A Family and Friends Plan for Your Law FirmA family member or close friend calls you one day with a “quick” question. Seems she has a dispute with a neighbor or she just got denied a promotion or she needs to tell the renter of her duplex to stop smoking in his unit. She knows you are really busy but was wondering if you would mind looking into it or just writing a letter or making a phone call for her. She hates to bother you but she does not know any other attorneys and really needs some help with this problem.

So, do you agree to help? The answer differs for each attorney. Some swear against representing friends and family on the theory that no good deed goes unpunished. If the case turns sour, you lose the friendship or become a persona non grata at family get-togethers. Plead ignorance as to that area of the law, refer the matter out, and keep your nose clean.

Some lawyers, on the other hand, feel it is their obligation to help out a family member or friend. Remember when Joe helped you re-roof the garage? How about when Stacey brought your family meals for a week when your spouse was hospitalized? And you are unwilling to write a simple letter? Loser.

Basics. Let us say you decide to help this person. Keep in mind that regardless of whether she is going to pay you, she is your client. In fact, she probably became your client during the first phone call or the conversation in the family room during Thanksgiving dinner. She asked for legal advice and provided you with confidential information, you listened, nodded your head, made some noncommittal remarks, and did not give her any sign she should stop talking. She’s a client. Make sure you treat her like one.

Representation agreements. In most jurisdictions, ethics rules require representation agreements only for contingent fee matters or advance payment of availability or flat fees that will not be placed in a trust account. Nevertheless, a representation agreement is a good idea for all client engagements, including those you may do for free. Legal Aid and other pro bono lawyers always have their clients sign representation agreements. Even where no money is being paid, the client should understand the scope of the representation, what obligations the client has to cooperate with the lawyer, and how the client or lawyer may end the representation. This is no less applicable to friends and family (F/F) than it is to other clients. Signing a representation agreement also shows that you are taking the matter seriously and you expect the same from your clients.

Fees. If you do not charge the F/F a fee, you risk that if the matter becomes more complicated than you anticipated, you may become resentful that you are working for free, do a poor job, or let the case “mature” under a pile of files that do generate fees. Charging a fee, however, may give the impression that you are greedy and deserve to be the butt of lawyer jokes. See paragraph three, above.

One compromise is to agree with the F/F that you will provide them with several hours of legal services for free. After that first two or four or whatever hours, you will expect them to pay your bills. If your rate is $250 an hour, that is like giving them $500 or $1,000 right off the bat. Difficult for them to later say you did not treat them fairly when you gave them that much in free services.

You could be more elaborate and say that after the first four hours free, you will bill at one-half your rate for the next X hours, and then the full rate after that. However it is done, the idea is to convey to the F/F that your time is valuable, that they have to participate as well, and that you do not intend to make their very irritating case your life’s work unless they are willing to pay for it. Even if you would have felt guilty about charging your best friend for legal work, you are likely to feel less guilty after you have put in a number of hours free. The invoices also provide a permanent record of what work you did for them, which may help avoid recriminations later.

Getting out. Having an exit strategy is a particularly good idea when representing friends and family. Your personal relationship may lead you to get in deeper than you anticipated, with no good way to extract yourself once you are up to your hips in your client’s stuff. The time to think about getting out is at the beginning, when you are drafting the representation agreement. Think carefully about what the scope of your services will be and how to define when you will be done.

Confidentiality. Remember, no matter what happens, all of the information you receive during the representation of friends or family is confidential. No matter how badly it blows up, or how you are maligned in your circle of friends, or who whispers about you in grandma’s pantry, keep your mouth shut. No name-clearing, no setting the record straight.

Hopefully, if you take some of the steps outlined above, you will maintain long and happy relationships with your family and friends. At least that’s the plan.

(photo: toastforbrekkie)

lawyeristlab banner A Family and Friends Plan for Your Law Firm

A Family and Friends Plan for Your Law Firm is a post from the law firm marketing blog, Lawyerist.com

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