Practice Area(s) plus 1

image   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.

Enjoy your practice of XYZ law and ethics!










15 Resolutions for a More Rewarding Law Practice in 2015

image  by Sheila Blackford   ©2015

15 resolutions you may want to adopt for your own:

1. Check email in the morning and sort into three folders: Do, Delegate, Delete; you want to use email as a tool not get swallowed up by it.

2. Unless urgent, return calls at 11:00 a.m. and 4:00 p.m. daily; you’ll save time batch calling.

3. Have a Work in Process (WIP) meeting Monday mornings for reviewing and updating status of all open matters; you will catch what would otherwise slip through the cracks.

4. Call a different client each day off the clock to check in about how the client is doing; you’ll be rewarded from this simple action.

5. Plan time for a health break daily for a brisk walk, meditation, or yoga session; you’ll perform better if well-balanced.

6. Learn to say “no” to cases that you don’t want to do; your time is a valuable resource to invest wisely.

7. Send a handwritten thank you note when a matter is finished and enclose two business cards; appreciation is contagious.

8.  Monitor your financials: receivables, expenses, profitability; your clients need you to succeed.

9. Dust off your business plan and review quarterly; make it dynamic.

10. Plan regular networking breakfasts with colleagues and potential referral sources; don’t become isolated or overlooked.

11. Pick up the phone if a client is 45 days late in paying the bill; find out if there a problem tobe solved.

12. Use clearly written fee agreements; keep your client relationships positive.

13. Do an office audit to identify any inefficiencies and potential sources of malpractice claims and ethics complaints; call a PMA for help.

14. Focus on improving service to clients and increasing job satisfaction; don’t settle for mediocrity.

15. Create a case timeline, case budget, and scope of representation for clients before beginning work; keep the focus sharp.

Managing Your Client’s Expectations

JEL23652-Blackford, Sheila P3 (2)    by Sheila Blackford   ©2010   For many clients, the decision to get a lawyer is a scary one. How much will it cost me? When do I have to pay? Will the lawyer be able to help me? What will the lawyer do to fix my problem? How long will this take? All questions that run through your client’s mind but may not be asked for a combination of reasons you might find surprising including, because your client is not thinking clearly, is nervous to be in your office, or is afraid you won’t want to help if you are asked these questions.

I spoke to one lawyer who shared that his elderly client would listen thoughtfully, stroking his chin and say, “hmmm, that’s a good point.” The gentleman turned out to have dementia and didn’t understand what the lawyer was talking about but wanted to appear to understand to be polite. Hopefully, your client does not suffer from dementia and will understand if you explain things simply and slowly. Here are some tips for managing your client’s expections.

Start with clarity up front. Discuss key things at the initial client meeting:
1. the client’s objective in getting a lawyer for the situation;
2. the legal process you will need to go through;
3. the range of possible outcomes with any risks affecting success;
4. the information that still needs to be gathered;
5. the method of charging and billing for your services; and
6. your realistic estimate of how long the process and how much the legal fees and costs based upon the present facts as you understand them.

Clarity up front. Use a written fee agreement that includes the scope of representation signed by you and your client.
Your client will always be in favor of being well informed. Many lawyers think that their client does not want to have a multi-page written fee agreement that includes the scope of representation, the procedure and frequency of communication, along with the procedure and frequency of billing statements and payment.

Communication goes both ways. Be sure to include the responsibilities of the client to inform the lawyer promptly about new facts, new contact information, or upcoming periods of unavailability. Otherwise you may find your client’s phone has been changed with no new number or discover your client’s plan to visit family in another country is an unwelcome 11th hour discovery as you prepare for an imminent deposition, court appearance or decision to be made.

Clarity up front. Use a scope of representation letter signed by you and your client if not incorporated into your fee agreement.
This is for your protection against misunderstandings which can lead to a very poor lawyer-client relationship, resulting in an ethics complaint or malpractice claim.

Clarity throughout your representation. Provide adequate written communication about what is happening and how it affects the outcome: result, time, and cost.
Status updates are woefully underutilized and easy to provide. The number one complaint clients have about their lawyers is a lack of communication: I don’t know what’s going on with my case! This is a complaint that is avoidable. Have form letter status updates that you can quickly customize to provide personal information. For example, personal injury cases require request for medical records. A status update letter can inform the client of which records have been received and which are still necessary. When clients find out which medical provided hasn’t responded or provided requested records, these clients frequently call to express how important it is to them, prompting the office to get the records out by the end of the day to avoid losing a patient.

Managing your client’s expectations requires communicating needed information at the beginning and throughout representation. It also requires understanding that if you provide your client with a range of time for returning phone calls or delivering documents, your client will focus on the earliest time. The payment should come in two or four days. Anyone who has ever called the pediatrician worried about a sick child, upon being told the doctor will call you right back usually waited by the phone.

It is human nature to focus intently on our problems and needs and believe that those we pay to help us with these problems do too. We hear and remember what we wanted to hear. If you start with these premises, you will naturally know how to respond to your client.

It is better to under promise and over perform.
A good adage to adopt as your client-service orientation. Tell your client you will call back by 5 p.m. and plan to call by 4 p.m.; that you will have the will done by next Friday and plan to have it done by Wednesday. If something comes up delaying you, you will still meet the deadline given to your client. Your client will be very pleased. No client ever complained about a lawyer who called back sooner or who delivered work before deadlines. Happy clients have their expectations met. By managing your client’s expectations, you will find them easier to meet.