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5 Must-Knows When Responding to an Ethics Complaint

Posted on March 7, 2016 | Comments Off on 5 Must-Knows When Responding to an Ethics Complaint

The Office of Lawyers Professional Responsibility (OLPR) summarily dismisses many ethics complaints without investigation. As high as 47% of complaints were summarily dismissed in 2012, for example.

But when there are sufficient allegations of attorney misconduct that would violate the ethics rules, the Director’s Office normally issues a Notice of Investigation (NOI) to the attorney.

 

If you are an attorney who is served with an NOI (ethics complaint), here are 5 must-knows when responding to it:

1. The Minnesota Rules on Lawyers Professional Responsibility govern how complaints are investigated and disciplinary proceedings are conducted

The Minnesota Rules of Professional Conduct (MRPC) regulate Minnesota attorneys’ conduct and set the standards for attorney discipline. Meanwhile, the Minnesota Rules on Lawyers Professional Responsibility (RLPR) govern the investigation and disposition of complaints. Although knowledge of the RLPR is not required in daily law practice, it becomes pertinent when you are served with an NOI.

Rule 6(a), RLPR  states that all ethics complaints shall be investigated pursuant to these Rules. Rule 25(a), RLPR imposes a duty on the lawyer to cooperate with the investigation and respond to reasonable requests for information. Rule 25(b), RLPR allows the lawyer to challenge such requests, as long as it is promptly made, is in good faith and is asserted for a substantial purpose other than delay.

Before you begin responding to an NOI, you need to not only review the MRPC, but also read the RLPR to gain familiarity with the lawyer discipline system.

2. There are multiple players in the lawyer discipline system

The OLPR is responsible for investigating ethics complaints and prosecuting those that warrant discipline. An agency of the Minnesota Supreme Court, the OLPR has 11 attorneys and is led by a Court-appointed Director, who is now Susan M. Humiston (following Martin Cole’s retirement in December 2015).

The OLPR screens complaints before deciding whether to investigate. When an investigation is deemed necessary, the complaint is usually referred to the local District Ethics Committee (DEC).

There are 21 District Ethics Committees, which conducts most of the initial investigations and provide reports and recommendations to the OLPR. DECs are made up of volunteer lawyers and non-lawyers and may serve up to four 3-year terms.

The  Lawyers Professional Responsibility Board (LPRB) is responsible for oversight and administration of the Minnesota lawyer discipline system. It consists of 23 members (14 lawyers and 9 non-lawyer public members) appointed by the Minnesota Supreme Court. Members can serve two 3-year terms.

The LPRB includes a five-member executive committee that has general supervisory authority over the OLPR and the Rules on Lawyers Professional Responsibility. The LPRB is also divided into six three-member Panels, which preside over hearings on allegations of professional misconduct against lawyers. Individual LPRB members are also assigned in rotation to consider appeals of dismissed complaints.

Although some investigations are not always based on a complaint, but rather on news reports and court decisions indicating professional misconduct, a complainant is usually involved in the process. When the complaint has been summarily dismissed or dismissed after investigation with a determination that discipline is not warranted, the complainant is notified at the same time as the respondent attorney. A complainant is notified of the right to appeal a private admonition only after the attorney has accepted the admonition. The complainant has 14 days to appeal the decision. The reviewing LPRB member has several options on how to rule on the appeal.

In general, all these players have a say in whether the complaint is dismissed following investigation or whether there is a determination that discipline is warranted.

3. The OLPR’s decision to investigate is based on whether there are sufficient allegations of attorney misconduct that would violate ethics rules, not on whether the allegations are likely true

Rule 8(a), RLPR sets the threshold for when an investigation, with or without a complaint, may be initiated. It states the Director may investigate the lawyer’s conduct when there is “reasonable belief that professional misconduct may have occurred…”  The Director may also begin an investigation on his sole initiative (i.e., without a complaint), but must have prior approval of the Lawyers Board executive committee.

The threshold is relatively low: the allegations do not have to be verified or be deemed verifiable when the NOI is issued. Past OLPR Director Martin Cole stated in OLPR Investigation Procedures, “This is somewhat akin to the civil litigation standard that a complaint must state a claim upon which relief can be granted; that is, if the allegations in the complaint are true, do they constitute a violation of one of the Minnesota Rules of Professional Conduct?”

Your first chance to set the record straight is in the response to the NOI. Submitting documentary evidence showing the allegations are untrue and professional misconduct did not occur may lead to the dismissal of the complaint after investigation. Providing favorable facts can also help to lower the level of discipline, if ethics violations are found and lawyer sanctions are warranted.

Discipline is warranted only if there was an actual rule violation.  Get clear on which rules are being implicated in the complaint or which rules will likely be at issue due to the allegations. A minor deficiency in conduct, a failure to meet best practices, or an inadvertent mistake doesn’t necessarily mean ethics rules were broken.

For instance, Rule. 1.1, MRPC (Competence) requires lawyers to “provide competent representation to a client”, which  is “legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.”  The issue comes down to what a reasonably prudent lawyer exercising reasonable care would do, not what the best attorney following best practices would do.

Don’t be too hasty in equating minor shortcomings with rules violations. But when it comes to obvious violations, own up to them and describe mitigating circumstances. Take remedial measures and present evidence demonstrating you have implemented safeguards to prevent misconduct and avoid mistakes in the future. Otherwise, the OLPR is more likely to conclude you must be sanctioned to “guard the administration of justice” and “protect the courts, the legal profession and the public” (which is the main purpose of lawyer discipline).

Your response to the NOI is the earliest and best opportunity to show no professional misconduct occurred or to show discipline is not warranted. At the very least, an effective response can help mitigate discipline when ethics violations are found .

4. A rule violation doesn’t have to be intentional or malicious

OLPR’s Senior Assistant Director Siama Y. Chaudhary stated in An Overview of the Disciplinary Process:

In the event a violation of the rules is found, it does not necessarily mean that the attorney’s conduct was malicious or that the violation was the result of respondent-attorney’s incompetence as a practicing lawyer. In some situations, however, regardless of whether an innocent oversight is to blame, a rule violation is a rule violation regardless of how technical it may seem. 

A rule violation under Rule 1.3, MRPC (Diligence) could be due to lack of systems or faulty systems related to how you manage your client files, or work overload and poor work habits, such as procrastination.  Make implementing reliable office systems and dealing with languishing files a top priority.

A Trust Account overdraft, in violation of Rule 1.15, MRPC (Safekeeping Property), could be due to technical deficiencies in maintaining trust account books and records, instead of the attorney purposely misusing client funds. Get help from a qualified accountant or bookkeeper to bring your financial books and records in order.

If chemical dependency and mental health issues play a role, contact Lawyers Concerned for Lawyers or seek professional treatment sooner rather than later.

For minor or technical rule violations, the OLPR may dismiss the matter or impose the lowest form of discipline. But when such violations are part of a pattern of misconduct or combined with egregious misconduct, the disciplinary consequences are much more serious.

5. Different levels of disciplinary action may be sought if ethics rules violations are found

When a complaint is not dismissed after investigation,  the focus turns to the level of discipline to be imposed. If the lawyer challenges the recommended discipline, the OLPR’s role shifts from being a neutral investigator to an adversary (prosecutor) of the lawyer.

The RLPR provides for private discipline and public discipline.

Private means the OLPR, the complainant, and the lawyer receive a copy of the decision, and the OLPR may disclose the decision only in very limited situations. No petition for disciplinary action is filed with the Minnesota Supreme Court.

Private discipline includes:

Admonition.  An admonition (reprimand) is imposed by the OLPR’s Director. It is the lowest form of discipline that may be issued for “isolated and non-serious” professional misconduct. Rule 8(d)(2), RLPR.

Stipulated Probation. Private probation may be imposed by agreement (stipulation) between the Director and the lawyer for a period of up to two years, subject to approval by the Lawyers Board Chair or Vice-Chair.  This discipline is is often used to monitor attorneys with patterns of misconduct or attorneys with chemical dependency or mental health issues.

Private disciplinary actions may be appealed by complainants. The respondent lawyer may also appeal an admonition.

Public means the discipline is ordered by the Minnesota Supreme Court, is typically published in Finance & Commerce and Northwest Reports, is posted on the OLPR’s website, and may be disclosed to any person.

To start the processing of seeking public discipline, the OLPR files charges of professional misconduct with the Lawyers Board. A hearing, which is not public, is conducted before a Lawyers Board Panel.  The Panel decides whether probable cause exists to believe public discipline is warranted on any or all of the charges.

If a Panel or the Lawyers Board finds probable cause, the OLPR may file a petition for disciplinary action with the Minnesota Supreme Court. The petition and all related proceedings are public. Furthermore, since 1983, the Lawyers Board has held a media release policy allowing petitions for disciplinary action, which seek an attorney’s suspension or disbarment, to be released to the media when filed with the Court. The media may choose to publish a news article on the disciplinary matter.

The Court assigns the case to a referee, who is a state district court judge. The referee conducts a hearing in which the OLPR and respondent lawyer present direct testimonies from witnesses and cross-examine witnesses. The OLPR has the burden to prove by clear and convincing evidence that professional misconduct occurred.

Following the hearing, each party may file proposed findings of facts and conclusions of law, and a post-hearing brief. The referee then issues written findings of fact, conclusions of law, and a recommendation for discipline, which may include dismissing the case and recommending no discipline be imposed.

The OLPR or the lawyer may stipulate to the referee’s findings, conclusions, and/or recommendation, or challenge them. When either party challenges the referee’s findings, conclusions and/or recommendations, both must file briefs and present oral arguments before the Supreme Court. The Court then issues a written opinion with its decision.

Public discipline includes:

Reprimand.  A reprimand involves public notice, but does not in and of itself limit the lawyer’s practice. It usually, however, comes with a period of probation.

Probation. Probation imposes restrictions, conditions, or obligations on the lawyer’s practice. It is often used to curb ongoing problems related to diligence, client communication, trust account record keeping, or tax return filing.

Suspension. Suspension is the loss of the privilege to practice law for an indefinite period or for a stated period (90 or fewer days or longer than 90 days). It is the most common level of public discipline ordered by the Minnesota Supreme Court. There are many types of misconduct that may lead to suspension, including neglect, making misrepresentations to a tribunal, pursuing frivolous appeals and filing frivolous pleadings.

Disbarment. Disbarment involves the permanent loss of the privilege to practice law. It is the most serious discipline and is imposed only in extraordinary circumstances. Examples of misconduct that may result in disbarment include misappropriation of client funds, felony criminal convictions, fraud, abandonment of clients, repeated failure to file income tax returns, flagrant non-cooperation including failure to submit an answer or failure to attend a pre-hearing meeting before the Panel as required by Rule 9, RLPR.

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These are the top 5 must-knows when responding to an ethics complaint. Having a deeper knowledge of the disciplinary process can help you get the complaint dismissed or mitigate discipline. Your response affects the OLPR’s determination on whether the allegations are true, whether rules violations occurred, and whether discipline is warranted.

Be sure to read 5 Must-Dos When Responding to an Ethics Complaint.

SPECIAL NOTE: Want to learn more? Attend the Minnesota CLE webcast on Responding to Ethics Complaints: 5 Must Dos + 5 Must Knows, scheduled for May 31, 2016 at 2 pm. 

At this 1-hour ethics CLE, I will discuss 5 must-do’s and 5 must-knows when responding to an NOI. There will be tips on how to present your best case or strongest defense at the outset, before the OLPR decides whether to file a petition for disciplinary action with the Minnesota Supreme Court.

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This article provides general information only. Do not consider it as legal advice for any individual case or situation.  

The author, Dyan Williams, is admitted to the Minnesota state bar and focuses on the Minnesota Rules of Professional Conduct, which are subject to change. Check your individual state rules of professional conduct, regulations, ethics opinions and case precedents, instead of relying on this article for specific guidance. 

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5 Must-Dos When Responding to an Ethics Complaint

Posted on November 18, 2015 | Comments Off on 5 Must-Dos When Responding to an Ethics Complaint

Each year, about 75% of all ethics complaints received by the Office of Lawyers Professional Responsibility are summarily dismissed without investigation, or after investigation with a determination that discipline is not warranted.  When the Director’s Office chooses to investigate, there must be “a reasonable belief that professional misconduct may have occurred,” states Rule 8(a), Rules on Lawyers Professional Responsibility (RLPR).  A Notice of Investigation (NOI) is issued to the attorney, who then has an opportunity to respond.

If you are an attorney who is served with an NOI (ethics complaint), here are 5 must-dos when responding to it: 

1. Cooperate with the investigation

Although the Director’s Office may conduct the investigation, a volunteer with the District Ethics Committee (DEC) usually investigates complaints and makes reports and recommendations. The DEC is comprised of attorney members and non-attorney members.

The NOI includes a copy of the complaint, asks for a response, and identifies the investigator.  The NOI might also describe the alleged misconduct and/or the ethics rules at issue. You may also ask the OLPR to clarify the possible rules violation(s) that are being investigated.

Rule 25, RLPR mandates a duty to cooperate with the investigation. This means responding to reasonable requests for papers and documents, a written explanation addressing the matter under consideration, and appearing at meetings, conferences and hearings.

Rule 8.1(b), Minnesota Rules of Professional Conduct (MRPC)(Bar Admission and Disciplinary Matters) further states a lawyer shall not “knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority…” except when the information is otherwise protected by Rule 1.6, MRPC (Confidentiality of Information).

Failure to cooperate amounts to a violation of Rule 8.1(b), which may be an additional charge independent of the underlying complaint. It can even subject the lawyer to public discipline.

Consider the investigation process as an opportunity to set the record straight and provide your perspective on what actually occurred. At this stage, the OLPR is more of a fact-finder instead of a prosecutor.

2. Be on time

Ignoring the NOI and burying it under a pile of miscellaneous files won’t make it go away. Confront the complaint head on, even if you think it has no merits.

The NOI will give you a deadline in which to respond, typically 14 days. Filing your response on time is paramount to meeting your obligations under Rule 8.1(b), MRPC. It can also work in your favor as to the merits of the complaint, particularly if you are under investigation for violating Rule 1.3, MRPC (Diligence).

Put the due date on your calendar and into your tickler system. Set aside plenty of time to fully prepare a well-developed response.

Timely and reasonable requests for extension are readily granted by the OLPR and DEC, but don’t ask for more time unless you really need it. Refrain from asking for long and additional extensions, which could give the impression that you procrastinate on important matters.

Submit a written request well before the due date and explain why you are asking for an extension. (Being preoccupied with client deadlines and attending trial are good reasons. Not being able to locate the client file or the documents requested is probably not.)

3. Set a professional and respectful tone

It can be nerve-wracking to find out the Director’s Office has opted to investigate, instead of summarily dismiss the complaint on its face.  Your receiving an NOI means there are claims in the complaint — if found to be true — that amount to a violation of one or more ethics rules.

Show the utmost respect to the investigator (including non-attorney DEC members). Submitting an angry and defensive response will not help you. Resorting to personal attacks on the complainant or witness or engaging in emotional tirades makes a bad situation worse.

Do not file a retaliatory lawsuit or threaten the complainant with a defamation suit, which may lead to additional charges of professional misconduct.    The complainant has full immunity. Rule 21, RLPR, provides that an ethics complaint is absolutely privileged and may not serve as a basis for liability in a civil lawsuit.

Although you may take corrective action to address clients’ concerns noted in the complaint, you may not demand they withdraw their complaint as a condition. A complaint cannot be withdrawn once an NOI issued.

Your response will likely be marked as an exhibit if the OLPR decides to pursue disciplinary action against you. Your behavior during the investigation and disciplinary proceedings does matter. In one attorney discipline case, Pokorny was issued a private admonition for isolated and non-serious misconduct, but was suspended for his behavior during proceedings. See In re Pokorny, 453 N.W.2d 345 (Minn. 1990).

4. Provide a coherent description of the facts with documents to back it up

When there are conflicting versions of relevant facts, highlight positive factors that bolster your credibility or discredit the complainant. But refrain from revealing irrelevant and embarrassing information just to get back at the complainant, especially if it involves client confidences. Disclosure of confidential client information is limited to the extent necessary to establish a claim or defense in  a controversy with the client or to respond to allegations by the client concerning the lawyer’s representation. Rule 1.6(b)(8), MRPC.

Prepare a well-written, detailed and coherent response as if it were for your most important, favorite client. Provide facts and information that demonstrate how you met or exceeded your professional obligations. Support your response with relevant documentation, including sworn affidavits from third parties who have direct knowledge of the matter.

If the complaint or NOI mentions you failed to provide competent representation, describe the work you did for the client, provide documentation of the work, and explain how the work served to meet the client’s objectives.

If failure to communicate with the client is at issue, produce the letters, emails, telephone records, attorney-client meeting notes, and case notes demonstrating regular correspondence.

If failure to act diligently is one of the allegations, include evidence of your meeting deadlines, attending hearings, and following up on the client’s case. Describe any legitimate basis for inactivity in the client’s case. Did the client fail to timely respond to requests for necessary information and documents? Did you stop working on the case (without unduly prejudicing the client) because the client failed to pay agreed-upon legal fees?

Make sure the information you provide is accurate.  Review the client file, including case notes, correspondences, and work product. Qualify factual assertions when necessary. A response that includes false or inaccurate statements may be construed as a violation of Rule 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation) or 8.4(d) (conduct that is prejudicial to the administration of justice), MRPC.

5. Hire counsel (or at least get a second opinion)

When your reputation, profession, livelihood and attorney license are at stake, it can be very difficult to respond to the ethics complaint objectively and calmly. Consider hiring an ethics defense counsel for full representation or on a limited-scope basis. This is not a sign of culpability.

At the very least, have an attorney – who knows the investigation and disciplinary process well – review your response or work with you in preparing a response.

Be sure to review your malpractice insurance policy, which may provide for payment of fees of counsel for responding to the NOI. The policy may also require you to report the NOI to the carrier.

The risks and consequences are higher when the complaint goes beyond preliminary investigation.  Present your best case at the outset. Before you submit your response, get experienced counsel to check for clarity, coherence, and  tone.

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These are the top 5 must-dos when responding to an ethics complaint. These tips will help you maximize your chances of having the complaint dismissed when you did all you could to meet your professional obligations.  The response you provide influences the OLPR’s decision on whether to go beyond the investigation. It will also play a crucial role if the OLPR decides to pursue disciplinary action against you.

Be sure to read 5 Must-Knows When Responding to an Ethics Complaint.

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This article provides general information only. Do not consider it as legal advice for any individual case or situation.  

The author, Dyan Williams, is admitted to the Minnesota state bar and focuses on the Minnesota Rules of Professional Conduct, which are subject to change. Check your individual state rules of professional conduct, regulations, ethics opinions and case precedents, instead of relying on this article for specific guidance. 

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Responding to Ethics Complaints: Know the Rules!

Posted on November 16, 2015 | Comments Off on Responding to Ethics Complaints: Know the Rules!

When it comes to your law practice, avoiding ethics complaints is more effective and efficient than responding to them. But there is no foolproof way to prevent disgruntled clients and third parties from complaining to the Office of Lawyers Professional Responsibility (OLPR) about you.

If the OLPR serves you with a Notice of Investigation (NOI), a timely response is required. Otherwise, you will run afoul of Rule 8.1(b),Minnesota Rules of Professional Conduct (MRPC) , which states a lawyer shall not “knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority…”

Rule 25, Minnesota Rules on Lawyers Professional Responsibility (RLPR), further imposes a duty to cooperate with the investigation or proceedings. In particular, the lawyer must comply with reasonable requests, including requests for documents and information related to the client matter(s) in question.

An attorney at the OLPR will screen complaints before deciding whether to investigate or before sending a complaint to the local District Ethics Committee (DEC) for preliminary investigation. The OLPR summarily dismisses many complaints, without investigation. But when there is “reasonable belief that professional misconduct may have occurred,” based on Rule 8(a), RLPR, the OLPR may initiate an investigation into the lawyer’s conduct.

The MRPC set the professional standards under which lawyers may be disciplined. The rules cover competence, diligence, fees, communication, confidentiality and other issues that naturally arise in law practice. Knowledge of the rules related to professional conduct is tested in the Multistate Professional Responsibility Examination (MRPE), which was first administered in 1980 and is required for admission to the bars of almost all U.S. jurisdictions.

In responding to ethics complaints, lawyers also ought to read and review the RLPR. Until they become subject to disciplinary proceedings, most lawyers do not even know these formal rules exist. These are the procedural rules that govern the investigation and disposition of complaints, including how the disciplinary proceedings are conducted.

A timely, clear, organized, and well-documented response to the complaint sets a positive tone for the investigation or proceedings. An untimely, angry, incoherent and off-topic response hurts your credibility and could prompt the investigator to find merit in the complaint.

Interested in learning more about this topic?

On Wednesday, November 18, 4 to 5 pm, I will be participating as a panelist in a legal ethics discussion/CLE titled, Ethics in Practice: Exploring Ethics from Different Practice Perspectives. Other panelists include The Honorable Diane Alshouse, Ramsey County District Court Judge; Candace Groth, Associate Attorney at Virtus Law, and Kevin Slator, Senior Assistant Director at the OLPR. The discussion will be moderated by Blake Nelson, partner at Hellmut & Johnson who previously served on the 4th District Ethics Committee.

Registration deadline is Monday, November 16, 11:59 pm. For more information, go to William Mitchell’s CLE, Lectures and Events page.

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This article provides general information only. Do not consider it as legal advice for any individual case or situation.  The sharing or receipt of this information does not create an attorney-client relationship.

The author, Dyan Williams, is admitted to the Minnesota state bar and focuses on the Minnesota Rules of Professional Conduct, which are subject to change. Check your individual state rules of professional conduct, regulations, ethics opinions and case precedents, instead of relying on this article for specific guidance. 

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Avoid Ethics and Malpractice Pitfalls With Sound Business Practices

Posted on October 30, 2015 | Comments Off on Avoid Ethics and Malpractice Pitfalls With Sound Business Practices

pitfall

Law firms must run like a real business to stay open, pay bills, and succeed financially. The lawyers who manage these firms and work in them have business responsibilities, too. Whether you’re a solo practitioner or a managing partner at a big law firm, you have to bill your clients, market your practice, grow your client base, and nurture relationships to thrive in the legal industry. Otherwise, you cannot meet clients’ needs and deliver services on a sustainable basis.

Law students are typically reminded that the practice of law is a profession, not a business. It is indeed a self-regulating profession that is bound by rules of professional conduct. But focusing on the business side of law practice doesn’t weaken professionalism. Rather, having sound business practices strengthens your ability to serve clients ethically and responsibly.

Good business practices go hand in hand with professionalism. The traditional notion that law firms are not businesses is outdated. Although law firms are not ordinary businesses and lawyers are not just business people, ignoring the business side of law practice does not benefit your clients or the legal profession.

Many ethics complaints and malpractice claims are based on issues related to how you manage your firm and practice, instead of on substantive legal errors. Failing to respond promptly to client inquiries, procrastinating, missing deadlines, and over-billing or billing inaccurately are some of the top ethics and malpractice traps.

Here are sound business practices to help you prevent (and defend against) ethics complaints and malpractice claims:

1. Screen your potential clients and accept cases deliberately 

Choosing your clients carefully is the first step to building a strong clientele that appreciates the work you do and will pay you accordingly.

Demanding and difficult clients are hard to please and often the slowest to pay. If a client has gone through several lawyers before they meet with you, be wary. If they unduly blame others without taking any responsibility for their predicament, chances are they will find you wholly at fault for any delays and negative results.

Take cases that really capitalize on your expertise and interest and choose clients you really want to help.  This is not only sound business practice, but will also make it easier for you to comply with Rules 1.1 (Competence) and 1.3 (Diligence) of the Minnesota Rules of Professional Conduct (MRPC).

You can certainly take cases that require more than what you normally bring to the table, but be sure to do the reasonably necessary preparation to meet the clients’ needs. This includes asking for guidance from your colleagues and more experienced attorneys.

Even when a client passes initial screening, there are some situations where continuing to represent the client does not make good business sense and leaves you open to ethics and malpractice pitfalls.

Except as stated in paragraph (c), paragraphs (b)(5) and (b)6) of Rule 1.16 (Declining or Terminating Representation), MPRC, allows lawyers to withdraw from representation when “the client fails substantially 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, or “the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client.” Be sure to surrender the client’s file and property when your representation is terminated.

2. Keep a written fee agreement that fully describes the fee and scope of services

While business deals can be made verbally, on a handshake, or through a simple “thank you” letter, lawyers have unique obligations when it comes to agreements with clients. New clients and new matters should have a written fee agreement. Having the agreement in writing clarifies the scope of representation, your fee structure, your billing practices, and the out-of-pocket charges the client needs to pay. A written fee agreement also helps set clear expectations on both sides.

Make sure your clients can pay your legal fee, unless you want to end up with “forced” pro bono work.  Ask for an initial/advanced payment or retainer fee before you begin to work. Let the client know this payment is refundable if the work is not performed. Rule 1.5 , MRPC allows for advanced payments as long as they are agreed to in writing by the client and they are subject to refund.

3. Compete on value 

Rule 1.15(a), MRPC, states the following are relevant factors in determining whether the attorney’s fee is reasonable:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;

(3) the fee customarily charged in the locality for similar legal services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the circumstances;

(6) the nature and length of the professional relationship with the client;

(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and

(8) whether the fee is fixed or contingent.

Charge reasonable fees, not rock-bottom fees. Set your fees based mostly on the value you bring, instead of what you think the client can pay. Low billing rates don’t necessarily attract more clients. Competing on price often results in less profitable work, additional stress, and the need to take on a huge volume of cases to make up for the financial loss. While many clients will shop around for the lowest fees, you are better off with clients who choose their lawyers based on the value they bring. These clients are more likely to stay with you and refer others to you.

4. Implement effective billing and collections practices

Fee disputes and collections suits to recover on delinquent accounts are a driving factor behind many ethics complaints and malpractice claims. To avoid this ethics and malpractice trap, you need to have effective billing and collections policies in place. Mistakes — such as double-billing for duplicative work, charging clients for filing fees that have already been paid, inconsistent invoicing, and failing to clearly describe the work performed — leads to client mistrust. Accurate billing and timely collections will reduce financial problems down the line and enhance your relationship with the client.

Avoid suing a client just because you believe you deserve to get paid for the work you did and the results you delivered. Consider whether the client has the ability to pay and whether the amount owed is worth the hassle of trying to collect it.

5. Communicate regularly and respond promptly

Rule 1.4 (a), MRPC, requires you to promptly inform the client of key decisions and circumstances and obtain informed consent; reasonably consult with the client about means to accomplish objectives; keep the client reasonably informed about the status of the matter; and promptly comply with reasonable requests for information. These ethics rules are also sound business practices.

Respond to your clients’ voice mails and emails within 24 hours, unless there are extenuating circumstances, such as your being ill or on vacation. Have a back-up plan for those circumstances. Even if you don’t have an immediate answer, let clients know you received their message and will follow up within a certain time frame. At the very least, inform your clients about your communications policy, such as your office hours and when and how they can expect a response from you.

Send your clients copies of all filings, correspondences and other materials relating to their matter.  This is a convenient way to keep them reasonably informed about the status of their case. Regular and prompt communication is not only ethical, but is also a good business policy that increases client loyalty and satisfaction.

6. Set up systems to handle client matters and run your firm

Systematizing your  law practice helps you provide high-quality service and effective representation to your clients. Systems are clearly defined, step-by-step plans, procedures, processes and policies to complete routine tasks and address common issues.

Documenting your processes and policies, as well as systematizing repetitive tasks, can help you streamline your practice and create more consistent, high-quality results (no matter how heavy your work load).

Systematization doesn’t mean you provide cookie-cutter solutions or drop the uniqueness of your brand. Rather, they help you automate routine activities and daily operations so your firm runs like a business instead of just as a practice that depends completely on you.

Two key systems that allow you to run your firm effectively and avoid ethics and malpractice traps are:

  •  Calendaring, scheduling and tickler system. e.g. recording important hearings and meetings and setting reminders for due dates and deadlines.
  • Client file management system. e.g. providing steps for running conflicts checks, opening new client files, closing files, and destroying old files.

Setting up systems can be a time-consuming, costly activity. When you’re busy, it can seem a like a low priority. But having systems in place is key to operating your law firm like a real business and meeting your obligations to clients.

7. Find the best, workable solution for the client

Although law firms are businesses, your responsibilities as a lawyer should always trump your roles as a business person. While filing a meritorious lawsuit is probably more lucrative than using informal channels, lawyers need to consider the best interest of the client. As professionals, lawyers also have a duty to avoid overburdening the courts and clogging up the judicial system.

In immigration practice, for instance, a lawyer should consider negotiating an agreement with the immigration authorities that will meet the client’s objectives, instead of filing a federal lawsuit to make case law (and more money). While using cost-effective methods to gain desired results  might not bring you fame and glory, it will enhance your reputation and add to the bottom line in the long run.

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This article provides general information only. Do not consider it as legal advice for any individual case or situation.   The sharing or receipt of this information does not create an attorney-client relationship.

The author, Dyan Williams, is admitted to the Minnesota state bar and focuses on the Minnesota Rules of Professional Conduct, which are subject to change. Check your individual state rules of professional conduct, regulations, ethics opinions and case precedents, instead of relying on this article for specific guidance. 

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Photo by:  Kevin Harber

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Managing Client Expectations – Part II (after representation begins)

Posted on July 15, 2015 | Comments Off on Managing Client Expectations – Part II (after representation begins)

bullseye 6-7-15Managing client expectations is an ongoing process that begins even before you accept a case. You first need to determine why the prospect is seeking a lawyer and whether you can help meet his objectives. Once you’ve accepted the case, your meeting or exceeding client expectations is paramount to having a successful practice.

Here are tips for (setting and) managing client expectations in your legal practice after representation begins:

Turn reasonable expectations into achievable objectives

Rule 1.0(i), Minnesota Rules of Professional Conduct (MRPC) defines “reasonable” or “reasonably,” when used in relation to a lawyer’s conduct, as conduct of a reasonably prudent and competent lawyer.  The client might have a different perspective of what reasonable means.

Throughout the representation, watch for signs of unmet expectations. If the client’s expectations are unreasonable, work with them to set more realistic ones. Provide information on what factors are outside your control and why outcomes are largely unpredictable.

Focus on what you can influence to maximize the likelihood of success.  For example, in a marriage-based green card application case, immigration lawyers can help clients gather as much documentation to prove the bona fide nature of the marriage and thoroughly prepare clients for the green card interview.  But they do not control which documents are actually available, which immigration officer conducts the interview, and how long the process will take.

If the client’s expectations continue to be unreasonable, consider withdrawing from representation when possible and appropriate.

Communicate clearly and promptly

A substantial portion of ethics complaints arise from lack of communication with clients.

Rule 1.4 (a), MRPC, requires you to promptly inform the client of key decisions and circumstances and obtain informed consent; reasonably consult with the client about means to accomplish objectives; keep the client reasonably informed about the status of the matter; and promptly comply with reasonable requests for information.

At the outset, describe your communication policy and office procedures to your clients. For example, let them know whether to call you, instead of send you an email, on urgent matters. If your business phone does not accept text messages,  inform clients that you do not have this capability.

Likewise, you should educate yourself about your clients’ preferred method of communication and the depth and frequency of communication they want.  Do your clients prefer to use email instead of talk by telephone? Do they prefer to be called on their cell phone or on their work phone? May you contact them before or after normal business hours or on weekends?

From the start, describe the average time to get a matter resolved and the potential obstacles they might encounter along the way.  This makes it much easier for them to deal with negative outcomes or delays that do occur. Even if you’re just waiting to receive a decision and nothing’s happening in the case, touch base with the client. Make a courtesy call or send a status report via email to let them know you have not forgotten about them or their case.

Give clients regular and prompt updates on the status of their case, whether it’s good news or bad news. When there’s good news, briefly remind your client about what you did to influence the outcome.  Share bad news in person (or by telephone), but never by email or voice mail. Present corrective solutions or positive ways to move forward. Can the decision be appealed? Is a motion to reopen possible?

Although instant, open access to you is not always reasonable or possible, your prompt return of telephone calls, reply to emails or responses to letters is critical to meeting client expectations. If you need additional time to research their questions, get back to them within 24 hours and ask for more time to give them a more detailed response.

When communicating about their case, stay away from legal jargon. Use plain language that your client can easily understand. Repeat your explanation if necessary. When your clients fully understand  you, they are better equipped to make informed decisions and will more readily trust you.

Clear, timely communication with clients does not just involve discussions about their case, but also about fees and and bills. The attorney-client relationship will break down if you are not paid for the work you do. If a client is not paying their bills, find out why and reach a mutually acceptable solution.

Over-deliver and under-promise

Rule 1.3, MRPC requires a lawyer to act with reasonable diligence and promptness in representing a client. Giving clients a realistic assessment of how long a process takes will help to manage their expectations. This doesn’t give you freedom to procrastinate, which can adversely affect the client’s interests and destroy their legal position, as Comment 3 states. At the same time, refrain from giving overly optimistic projections.

Deliver before or or on the deadline. Be careful about the promises you make and fulfill the promises you do make. If you are unable to deliver when you said you would, inform the client well ahead of the due date. Of course, you cannot miss deadlines that are set by Court orders and other external, mandatory requirements.

End the representation gracefully and with professionalism

Rule 1.1.6, MRPC, allows a client to discharge a lawyer at any time. When a client wishes to terminate your representation before you complete the work, end the relationship gracefully and with professionalism. In some instances,  you can find out the reasons why and determine whether the relationship can be salvaged. But never pressure the client to stay with you or blame the client or anyone else for the breakdown in relationship.

A lawyer may also terminate representation when it will result in violation of the Rules of Professional Conduct or other law.  A client who insists on presenting fake documents or false information conflicts with the lawyer’s duty of candor to the tribunal, under Rule 3.3.

Rule 1.16(d) further states that upon termination of representation, a lawyer must take reasonable steps to protect a client’s interests, such as giving reasonable notice to the client, allowing time to hire another lawyer, turning over papers and property belonging to the client, and refunding any advance payment of fees or expenses that has not been earned or incurred.

When representation continues to the conclusion of the matter, a closing letter or end-of-representation meeting is appropriate. This helps to prevent any misunderstandings about ongoing representation.

Ending the relationship gracefully and with professionalism– no matter the circumstances – leaves the client with clear expectations for the future. In turn, this help you avoid ethics pitfalls and malpractice traps.

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Managing client expectations is an ongoing process that continues throughout representation and even after representation ends.  How you conduct yourself during representation will influence the client’s level of trust in you. How you end the relationship will influence what the client says about you in the community.

Read our related article, Managing Client Expectations: Part I (before representation begins). 

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This article provides general information only. Do not consider it as legal advice for any individual case or situation.   The sharing or receipt of this information does not create an attorney-client relationship.

The author, Dyan Williams, is admitted to the Minnesota state bar and focuses on the Minnesota Rules of Professional Conduct, which are subject to change.  Check your individual state rules of professional conduct, regulations, ethics opinions and case precedents, instead of relying on this article for specific guidance. 

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Photo by:  Asim Barwani

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