Category Archives: competence

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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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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Managing Client Expectations – Part I (before representation begins)

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

bullseye 7-15-15Managing client expectations is critical to building your reputation, sustaining ongoing relationships, and getting referrals.

At the very least, it helps you avoid grievances, ethics complaints and malpractice claims from disgruntled clients.

Practice areas such as family law, criminal defense, and immigration law – where the personal stakes are high and confusion can easily occur – are especially problematic.

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

Define the prospective client’s objectives

Managing your client’s expectations begins at the initial consultation when you discuss the specifics of the case for the first time, or even at the case evaluation when you receive the initial inquiry.

The first contact normally begins with the prospect calling or emailing your office, or filling out a contact form on your firm’s website.  This is typically followed by a brief conversation to determine whether you/your firm and the prospect are a good match. If you are, the next step is to set up a consultation.

The initial consultation is the first opportunity to clarify prospective clients’ objectives, find out what relief they are really seeking, and describe the potential solutions and obstacles.

Mindful listening is essential. When you truly understand the client’s concerns, fears, desires and hopes related to why they are seeking a lawyer, you are better able to develop a positive relationship.

Decide whether to take the case

Rule 1.1, Minnesota Rules of Professional Conduct (MRPC) requires the lawyer to provide competent representation (legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation). Rule 1.3 further requires the lawyer to act with reasonable diligence and promptness when representing a client.

The case could be very interesting and the issues could be very well within your expertise, but the client has unreasonable expectations.  Trust your gut instincts. Watch out for red flags. Has the prospect had multiple lawyers before meeting with you? Did he mention fee disputes or grievances against other lawyers? Does the prospect seem impatient and demanding? Do they want to file a lawsuit to mainly punish the other party, regardless of the merits?

At the outset, if you accept the case, you should explain your responsibilities (e.g. responding to telephone calls, providing zealous advocacy) and their responsibilities (e.g. paying their bills on time, providing necessary and truthful information).

Even if you do not accept the case, you are bound by the ethics rules whenever you give advice in circumstances in which a reasonable person would rely on such advice.  Remind the person of important deadlines and statute of limitations, and confirm that you are declining the case, preferably in writing.

Clarify who the client is (when third parties are involved)

Having third parties involved in the case can break the attorney-client privilege and prevent the lawyer from offering candid advice.  Third parties often include a trusted friend or wise family member who can more articulately explain the facts of a case. They can also include a financially stable friend or relative who pays the legal bills. This is quite common in practice areas of criminal law, family law, juvenile law and immigration law.

Some clients, such as minor children and individuals with mental disabilities, need third parties involved. Rule 1.14 (a), MRPC, states that when a client has a diminished capacity, “the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.” Comment 3 notes that the presence of family members or other persons, when necessary to assist in the representation, generally does not affect the attorney-client privilege. But the lawyer must look primarily to the client when making decisions for the client.

Rule 1.8(f), MRPC allows lawyers to accept fee payment from third parties, provided certain conditions are met.  You cannot accept fee payments from a third party unless: (1) the client gives informed consent or the acceptance of compensation from another is impliedly authorized by the nature of the representation; (2) the third party will not interfere with your professional judgment or with the client-lawyer relationship; and (3) you comply with the confidentiality rules under Rule 1.6, MRPC.

To meet client expectations, you must ensure that a third party’s involvement will not materially limit your representation.  For example, you must decline the case when  the third party is an existing client who presents a real conflict of interest. Even if there is no formal conflict of interest, a third-party payor’s interest might be so different from the client’s that it impairs representation.  Make it clear that disclosures will be limited to protect the attorney-client privilege, or obtain a waiver from the client (if appropriate).

Specify the fees and scope of representation

Rule 1.5(b) requires the lawyer to communicate the scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible, preferably in writing.

When solos or small firm lawyer sue a former client for unpaid legal fees, they open themselves up to ethics complaints and malpractice suits. In some situations, the client was dishonest to begin with and never intended to fully honor the fee agreement. Other times, unpaid fees result from unmet expectations. For example, the client did not get the desired result and blames the lawyer for not accomplishing it.

In some states such as Minnesota, flat fees and availability (retainer) fees do not have to be placed in a trust account until earned: advance payments,  if agreed upon in writing, are the lawyer’s property but are subject to refund.

A written and detailed fee agreement will help prevent misunderstandings and set appropriate expectations. It should describe the scope of the representation (e.g. what you will do and will not do); how fees are calculated and charged (e.g. flat fee versus hourly fee); and when you will be compensated (e.g. monthly installments, retainer fee, advance payment of flat fee).

You may also include disclaimers in fee agreement, such as notifying the client you cannot guarantee favorable results, despite your best efforts. U.S. immigration lawyers, in particular, may inform clients (in writing) of potential consequences, such as possibly being placed in removal proceedings if USCIS denies their green card application and they are not maintaining lawful nonimmigrant status.

Set appropriate and reasonable expectations

Rule 2.1, MRPC requires the lawyer to exercise independent professional judgment and render candid advice in representing a client. You may refer not only to the law, but also to moral, economic, social, and political factors that may be relevant to the case. Providing a realistic assessment of the case and likelihood of success is part of complying with Rule 2.1.

You will not be hired unless the prospect believes you will make a difference and deliver positive results. You can promise to do high-quality work and provide the best service. But you cannot guarantee a successful outcome because there are so many factors outside your control.

You need to be clear on the fees and costs and how long it will likely take for the matter to be resolved. If there’s a huge gap between the desired outcome and the likely expense, you either help them reset their expectations or decline representation. Unreasonable expectations means you risk doing work that will not be appreciated or compensated.

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Breakdown in attorney-client communication and mismanagement of clients’ expectations lead to unhappy clients and potential ethics complaints. Managing client expectations is an ongoing process that begins even before you accept a case. From screening clients to charging the appropriate fees, what you do and say at the outset affects the quality of the relationship.

Read our related article, Managing Client Expectations – Part II (after 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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Why a Niche Practice is Good for Legal Ethics and Great for Business

Posted on May 18, 2015 | Comments Off on Why a Niche Practice is Good for Legal Ethics and Great for Business

The very first ethics rule says lawyers must be competent in matters or fields in which they represent clients.  Rule 1.1 (Competence) requires you to have substantive knowledge of the law and prepare thoroughly for the representation.

Another ethics rule says lawyers must be diligent in representing clients. Rule 1.3 (Diligence) requires you to take lawful and ethical measures to meet your client’s objectives, follow through on potential solutions, and attend to matters in a timely manner.

While general practice lawyers are competent and diligent in most cases, being too much of a generalist can lead to mediocre work, dissatisfied clients, and subpar outcomes.

In contrast, developing a niche practice allows you to focus on specific areas of law and deepen your knowledge and experience in those areas. Having a niche usually leads to more personalized client service and better results for clients.

What is competence? 

ABA Model Rule 1.1, which is wholly adopted in the Minnesota Rules of Professional Conduct, states:

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Competence can be achieved by reasonable preparation, necessary study, and association with a lawyer of established competence in the field. The lawyer does not need to have “special training or prior experience” to handle a matter competently.

But in some circumstances, expertise in a particular field of law is required. The complexity and specialized nature of a matter is relevant. The lawyer’s general experience, the lawyer’s training and experience in the field, and the preparation and study the lawyer is able to give the matter are also significant.

The lawyer should also keep abreast of changes in the law and its practice, engage in continuing study and education, and comply with all continuing legal education requirements to which the lawyer is subject.

Developing competence requires focus. And it’s easier to focus when you choose, build and market a niche practice.

What is diligence? 

ABA Model Rule 1.3, which is wholly adopted in the Minnesota Rules of Professional Conduct, states:

A lawyer shall act with reasonable diligence and promptness in representing a client.

Diligence involves pursuing a matter for the client “despite opposition, obstruction, or personal inconvenience to the lawyer” and using lawful and ethical means to achieve a client’s objectives.

Diligence also includes controlling your work load so you handle every matter competently. It also means avoiding procrastination and neglect of client matters. Comment 3 of Rule 1.3 states:

A client’s interests often can be adversely affected by the passage of time or the change of conditions; in extreme instances, as when a lawyer overlooks a statute of limitations, the client’s legal position may be destroyed. Even when the client’s interests are not affected in substance, however, unreasonable delay can cause a client needless anxiety and undermine confidence in the lawyer’s trustworthiness.

Being diligent requires promptness, responsiveness, and awareness of important details. These qualities are harder to sustain when your attention is scattered across multiple practice areas and a wide range of client matters.

Why is a niche practice good for legal ethics?

When solos and small firm lawyers practice in multiple areas –  immigration, criminal law, estate and wills, and family law, for instance – they can spread themselves too thin. If you try to take on every conceivable client in every possible situation, you normally have less time, capacity and experience to provide competent and diligent representation.  A niche practice helps you to minimize distractions and set your top priorities.

1. You’re better able to keep up with changes and nuances in the law

By focusing on your core competencies, you’re more likely to stay abreast with changes in the law and to understand complex issues. When you have a niche practice, you have more time and interest to read books, law journals, articles, case law, legislation and practice guides, join organizations, attend advanced CLEs, and write and speak about your areas of law. You’re better positioned to know the law inside out, and therefore serve your clients competently and diligently.

If you’re a generalist, you normally have less time and fewer resources to build your knowledge and expertise in specific areas. Your knowledge is more likely to be a mile wide and an inch deep, which affects the level of competence and diligence you bring to client matters.

2. You have more opportunities to develop your expertise

When you establish yourself as an expert in your niche area, you attract more clients with the problems that you solve. You can take your niche practice to the next level by developing sub-specialties in that area. Focusing on subsets can be particularly beneficial when there are plenty of lawyers in your niche.

A niche practice leads to more opportunities to develop your knowledge, skills and experience in your areas of strength and interest. This makes it much easier for you to avoid pitfalls, spot latent but critical issues, and develop creative and viable solutions for your clients.

3. You become more attentive to clients and more focused on client matters

Having a niche practice encourages you to select the clients you want to work with and the types of matters you want to handle.  Being more selective allows you to attend to your ideal clients and to do more meaningful work.

The more familiar you are with the area of law, the more effectively you can deliver the work product, communicate with clients, and provide accurate advice. You know who to call and what resources to use. You are better able to evaluate the strengths and weaknesses in a case, choose the best strategies, overcome obstacles, and make educated guesses about the outcome.

Developing a niche practice not only allows you to be competent, but also to be diligent in attending to client matters. You become more efficient, productive and streamlined in what you do.

Why is a niche practice great for your law firm?

Competence and diligence are basic ingredients of a successful law practice. Limiting your services to certain areas and/or subareas of the law generally leads to deeper expertise, unique experience and higher success rates in client matters. In turn, this increases the odds of your building and sustaining a successful law firm.

1. You find it easier to attract prospects and clients

One of the most rewarding aspects of a niche practice is being the “go-to” person for your particular area of law, industry or geographic area. For example, through education-based marketing to your target audience, you develop your credibility, reputation, and expertise in your niche.

When prospects and clients know what you do and how you can help them, it’s easier to get them to contact you and hire you. Referral sources also have a better sense of what you do and are more comfortable sending potential clients to you.

It is temping to engage in “door law” (i.e. take any case that lands on your desk or accept any client that enters the door) – especially when you’re starting out or trying to grow your practice. But being too much of a generalist often gets in the way of building a sustainable practice.

A niche practice enables you to build a recognizable brand that stands out in the market. If you are consistent and deliberate in targeting your ideal clients with the right messages through the right medium, you are more likely to set yourself up as the expert in your area of practice.

2. You create a better work product for your clients

If you target your ideal clients, instead of take on any client, you will attain deeper fulfillment in your practice.  If you practice in areas that you enjoy the most, you will be more inclined to do the necessary work for better outcomes.

Although over-specialization has risks – such as getting bored, losing out on potential clients, and having your practice tank when the economy shifts, the work dries up, or the law changes – over-generalization frequently carries even greater risks. Having more than one niche area or subarea will help you guard against the risks of limiting your practice too much.

3. You deliver exceptional client service

Practicing multiple areas of law can lead to a lack of focus, which reduces productivity, effectiveness and efficiency. Having too many types of matters to handle requires you to switch frequently from one area to another.  This can leave you feeling scattered and drained. If you spread yourself too think across multiple practice areas, it’s more difficult to wow your clients and get referrals.

By limiting your practice to niche areas in which you excel and thrive, you are more likely to respond promptly to inquiries, meet deadlines, and provide exceptional representation to your clients.

Conclusion

There are some situations where being a general practitioner works well and is a sensible choice.  Effective general practitioners have a broad range of skills, knowledge and experience they can apply across practice areas. Those who live in small towns or rural areas, where there are only a few lawyers, often benefit from being generalists.

But in most cases – unless you have a reliable and well-trained team to which you may delegate duties responsibly- it’s much harder to meet your ethical obligations and run a thriving law firm as a generalist. And even when you have a great team, you – the individual lawyer – still often need a niche practice to truly build your expertise and provide exceptional service.

The advantages and benefits tend to outweigh the trade-offs and risks that come with developing a niche practice. Doing your market research, creating a business plan, and reaching out to your ideal clients are critical for your niche practice to succeed.

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SPECIAL NOTE: Want to learn more about why a niche practice is good for legal ethics and great for business? 

Attend the Minnesota CLE live webcast on May 26, 2015 at 9 am, titled 5 Ethics Mistakes that Solos and Small Law Firms Make (and the Ethical Solutions to Avoid and Overcome Them).

At this 1-hour CLE, I will talk about building a niche practice, creating and implementing systems, offering unbundled legal services and flat fee agreements, and other ethical solutions to address 5 common ethics mistakes.

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 in her articles.  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: Jean-Francois Gornet

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