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RISK MANAGEMENT

Just common sense can ward off disciplinary and malpractice actions

Any attorney’s career can be ruined for failure to follow the simplest rules of communication and ethics, says Allison L. Wood, principal of Legal Ethics Consulting, a Chicago company that counsels firms on avoiding disciplinary and malpractice issues.

Wood was formerly a prosecutor in attorney disciplinary matters, and she has seen first-hand attorneys “in the tragic position of defending their licenses from reprimand and disbarment.”

Here she points to some obvious yet often missed ways to stay safe from both disciplinary and malpractice trouble.

The million dollar dream

Protection begins at the very onset of the client relationship – clarifying the client’s expectations.

It’s not uncommon for an attorney to tell the client “this is the case and this is what we’re going to do” and never listen to what that client expects to get out of the matter, Wood says.

The attorney may see a potential $500,000 settlement while the client expects to get twice that amount. With a misconception like that, the matter could end with a complaint to the state bar ethics committee that the client was misled.

To get the full picture of the client’s expectations, the attorney has to ask “what does success mean to you?” and “how do you want this matter to end?”

If the answer is “I hope this ends in a million dollars,” adjust the expectation: “based on my analysis of your case, a million dollars is unrealistic. Let’s discuss what’s realistic.”

Don’t run the risk of the client’s saying “my lawyer didn’t do what I thought she would do.”

Verify the items on the menu

Also establish the scope of work at the start of the matter, and lay it out in writing.

The client may say “I want you to do A and B,” and the lawyer may know that getting there will also require C and D. Unless the work is established up front, the attorney could end up billing for hours the client didn’t approve and won’t pay for.

The reverse can also happen. Any matter can “grow vines,” she says. A personal injury client who’s out of work may tell the attorney “I need to file bankruptcy” and walk away thinking the attorney is going to take care of it.

The engagement agreement needs to outline exactly what will and won’t be done: “This is what we agree to do for you. If we do anything beyond this, we have to write a separate agreement.”

Spell out the money

The fees too need to be outlined at the beginning and reviewed throughout the matter.

The client should get both a bill and a status letter at least every 30 days, Wood says. And the letter should explain the work done as well as the work the client can expect in the upcoming month.

She also notes that a written explanation of the bill is a safety item. Being able to show copies of correspondence puts the attorney “in a much better position” if the issue goes before a disciplinary agency.

Own up to the mistakes

Admit to mistakes. And be clear and open, perhaps “I missed a filing date, and the statute of limitations has run. I’m sorry. Here’s the information.”

Saying nothing is asking for trouble. And lying about it is asking for disaster. “That’s when an attorney really increases the risk of discipline and malpractice.”

Also, she says, mistakes are more easily forgiven if the attorney has maintained good communication with the client. It’s the same as with the medical profession. A doctor who tells a patient the truth about an error usually doesn’t get sued.

Not just anybody who walks in

Client selection is yet another part of malpractice avoidance, Wood says. Many an attorney in a disciplinary or malpractice case “hangs his head and says ‘I knew I shouldn’t have taken this case.'”

Be cautious accepting new business. If the matter is not within the area of practice, refer it elsewhere.

Some attorneys will take any client where the fee looks promising, she says, yet the attorney’s inexperience can easily result in mistakes or missed dates.

The client may claim incompetence. And if the attorney tried to get the case by saying “oh I’ve handled a lot of these matters,” the client may claim misrepresentation and dishonesty as well.

The new internet nightmare

And then there’s today’s new risk, which is violating client confidentiality via social media.

Before posting anything about a client or a matter, ask for permission: “We’d like to post this. Do you have any objection?”

Disciplinary and malpractice cases stemming from social media are not numerous because the issue is still fairly new, she says. But the risk is high.

In one case, a public defender wrote a blog about her displeasure with some clients and judges. And though she didn’t give names, she gave enough information for people to figure out who those clients and judges were. The result was loss of the job as well as discipline for disclosing client information.

The rule of confidentiality doesn’t change with social media, she says. What can’t be discussed offline can’t be discussed online.

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