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)

A CLE presenter is born

CLE Teaching11 A CLE presenter is bornRecently, I noted on a listserv that one of the cheapest ways to get CLE credits and market oneself at the same time is to teach CLEs. In Minnesota, presenters can receive credit for the time spent preparing the seminar, plus the organizers usually let the presenters attend the rest of the program for free.

But in response to my listserv post, someone asked me a simple question: how exactly does one become a CLE presenter?

Although it may help to have stunning good looks, that could not be the explanation in my case. But I did begin presenting CLEs just a few years after I graduated from law school, long before I really knew anything.  I spend a lot of time talking with CLE providers and coming up with CLE ideas. So here are some tips for getting up to the podium:

Start small

Look around for county or state bar section meetings. Many of these sections try to serve their members by offering free or low cost CLEs. The section chairs are often volunteers themselves and they are always looking for volunteer presenters and interesting topics. Call or e-mail them to say you have noticed that the section hosts CLEs and that you would like to get on their schedule for a future meeting.

Bank on basics

You don’t have to be the leading expert in the state to deliver an effective CLE, especially if you are talking to folks outside your practice area. “7 Things Every Family Law Attorney Should Know About Real Estate� and “9 ½ Things Every Real Estate Attorney Should Know About Family Law� are very popular CLE topics (for the family law attorneys and real estate attorneys, respectively). The more lawyers specialize, the more cross-fertilization will make for good CLEs.

Offer to organize

In Minnesota, many CLEs have volunteer planning committees that develop particular programs.  When you attend a program in your practice area, find the organizer, volunteer to work on next year’s program, and put an item on your calendar to follow up in a few months (it would help, of course, to come up with some clever ideas for new seminars). Working on the planning committee often leads to serving on a panel or presenting a topic on the day of the program.

Volunteer vigorously

When a group of lawyers spends enough time together, eventually they decide to run a CLE, either in connection with a fundraiser (which is becoming more common) or to raise awareness for a pro bono cause  or for their own marketing purposes. Volunteer for bar committees or pro bono legal clinics or the like, and CLE opportunities may come along.

Get glib

Are you passionate about your area of practice? Are you willing to answer people’s questions? Do you have time to help out your fellow lawyers?  People who seem to know what they are talking about -through magazine articles, website and blog posts, listserv responses, etc.- get noticed, which can lead to CLE invitations. Speak up (but be humble).

How do you get to Carnegie Hall?

Practice, practice, practice. Once you get a CLE gig, do not forget to prepare a useful set of materials for the audience and put together a compelling talk. Remember some essential speaking elements: do not read your materials to the audience, tell war stories only to make a specific point, use humor carefully, and stay focussed on your outline. If speaking does not come naturally to you, practice beforehand.

If none of that works, find someone you know who presents CLEs frequently and ask them to show you the secret handshake.

lawyeristlab banner A CLE presenter is born

A CLE presenter is born is a post from the law firm marketing blog, Lawyerist.com

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Your honor, I move to strike

Kids with tongues out11 Your honor, I move to strikeFor the most part, rude or obnoxious behavior between attorneys does not result in an ethics violation. But sometimes, lawyers can just go too far. An excerpt from the Louisiana Supreme Court’s Decision in In re Greenburg (May 5, 2009):

“During the hearing, Mr. Greenburg suggested that “some hanky-panky� on the part of Mr. Lewis might well justify an award of attorney’s fees to Mr. Greenburg’s client. The following exchange then occurred:

Mr. Lewis: Here we go again, Your Honor, the former D.A. is always suspect—
Mr. Greenburg: Your Honor, I’m going to object right now—
Mr. Lewis: —or somebody . . . the law—
The Court: Gentlemen, quiet.
Mr. Greenburg: —and ask that this jackass—
The Court: Gentlemen, quiet. Quiet, gentlemen.
Mr. Greenburg: —quit bringing up anything—
Mr. Lewis: Jackass?
Mr. Greenburg: Jackass.
Mr. Lewis: Your mother is a jackass.
The Court: Hey, hey, hey. All right, y’all are both in contempt.

“Following the exchange of profanities, Mr. Greenburg grabbed Mr. Lewis’ suit jacket and both men fell to the floor.“

In addition to each being cited for contempt, Greenburg was convicted of  battery against Lewis. The Court suspended Greenburg for a year and Lewis for six months, although all but 30 days of Lewis’ suspension was stayed.

So remember, when you’re arguing with opposing counsel, leave his or her mother out of it.

lawyeristlab banner Your honor, I move to strike

Your honor, I move to strike is a post from the law firm marketing blog, Lawyerist.com

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