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It is estimated that every year about one disciplinary
complaint is filed for every ten lawyers. Very few of
these complaints result in any discipline against the
lawyer, either because the nature of the complaint is
not covered by the disciplinary system or because the
lawyer is innocent of any wrongdoing. But the complaints
are made. Most complaints are made by clients, some
are made by lawyers, and a few by judges.
More than half of all disciplinary complaints result
in no action taken against the lawyer, but the lawyer
must defend himself or herself at emotional and financial
cost.
The important thing with disciplinary complaints is
not to win the war, but rather to avoid the battle.
A nonmeritorious complaint against you can hurt you
no matter how innocent you are of any wrongdoing.
Surveys I’ve done indicate that more than 50
percent of all ethics complaints are caused by poor
or nonexistent client relations, including poor or nonexistent
communication with clients. Poor client relations skills
result in lost income to the lawyer, unnecessary work
for bar counsel, and an erosion of the public’s
opinion of lawyers and of the legal system.
There is a very basic defect in almost all disciplinary
systems in that the file on the lawyer that contains
nonmeritorious complaints often stays open forever,
or at least as long as the lawyer lives. Assume, for
example, that a totally nonmeritorious complaint is
made against you. Assume that a full investigation is
made and that you did absolutely nothing wrong. Assume
it turns out that the client is mentally disturbed or
unhappy about a divorce, and in a moment of anger files
a complaint that is a “pack of lies.” Assume
you are completely and totally innocent of any wrongdoing
legally, morally, ethically, or otherwise, and that
you are totally exonerated.
That nonmeritorious complaint may stay in your file
forever. It is possible that additional complaints will
be made over the thirty to forty or more years you are
in practice. These complaints may also be nonmeritorious,
but they will be cumulative files of prior complaints
and there may be a “where there’s smoke,
there’s fire” mentality on the person or
committee investigating the complaint. You may be prejudiced
by prior nonmeritorious complaints.
A convicted felon who pleads guilty and goes to jail
may have a right to expunge his record, but an innocent
lawyer often has no right to expunge any records. This
is the system in many, if not almost all, states. I
think it is grossly unfair, but it is the system. Accordingly,
the important thing for you to do is to avoid the complaint,
not to win the war with the complaining client.
Although what follows may be duplicated in other parts
of this book, it is worthwhile to repeat it here in
this most vital chapter.
To avoid many, if not most complaints, you should:
- Discuss fees and expectations and the legal process
at the first meeting with clients so that they have
an opportunity to understand clearly what you can
and cannot do for them, what it will cost, and how
long it should take. Use estimates, if necessary.
- Have a written fee agreement clearly stating what
you will do, what you will not do, what is or is not
covered by the fees, and any other factors you feel
are important to you and to the clients as outlined
in Rule 1.
- Bombard your clients with paper mail, faxes and
e-mail, keeping them informed of what is happening,
including letters explaining why nothing is happening.
The client’s file should almost duplicate your
file.
- Return all telephone calls promptly (within two
hours, if possible) or have someone take them and
return them for you, but never ignore them. If you
are unable to make telephone contact with the party,
leave a voice-mail message or send an e-mail, postcard,
form letter, or fax indicating that you tried to return
the call. Put the ball back into their court.
- Be honest and open when a case is lost. Tell the
client as rapidly as possible after you find out.
Never lie to a client. The client may come back in
the future or refer other clients to you.
- Be “holier than thou” when handling
a client’s money. To quote an old proverb (which
I just created), “It is better to see your kids
without new clothes than to touch the client’s
trust money.” You may wish to use The ABA
Guide to Lawyer Trust Accounts, which I wrote,
or ask me for a complimentary copy of a videotape
on trust accounts.
- Cooperate fully with the next lawyer and the client
if you are discharged.
- Respond immediately to communications from disciplinary
boards or investigators. Offer immediate access to
yourself and to your files. If you have any questions
concerning an investigation, hire an ethics or professional
responsibility lawyer. You may wish to call me for
a “gut reaction” to your situation. It
is possible that if you or your lawyer respond rapidly
enough, a file will not be opened on the complaint.
- Keep accurate time records detailing what you did
and when you did it. Retain old records, including
notes of telephone calls and conferences, until the
statute of limitations for malpractice expires.
- Read, reread, and remember the ABA Model Rules
of Professional Conduct as adopted by your state.
Reprinted with permission of the author, Jay Foonberg.
Copyright 2004, Jay G Foonberg
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