By Deborah Henson
I. Introduction
From my experience working with the Louisiana Attorney Disciplinary Board (similar to Texas’s Board of Disciplinary Appeals, a/k/a BODA) and representing attorneys in disciplinary matters (a/k/a “grievances” here in Texas), it seems that some fairly common threads run through attorney discipline cases, which do NOT involve outright theft or other outrageous conduct. That is, where an attorney has received a complaint about some ethical wrongdoing of a fairly minor nature (compared to intentional theft of client funds or other fraudulent behavior), the following elements often are present as part of the alleged misconduct.
This article discusses some common pitfalls that could potentially lead to client grievances and presents some suggestions for avoiding those pitfalls. Additionally, not only do the suggested strategies help avoid client grievances, they will also assist in keeping clients happy with your representation, which will lead to more numerous referrals to your practice.
II. The Rules of the Game
As most lawyers know, the Texas Disciplinary Rules of Professional Conduct instruct our practice and require certain ethical behavior in our representation of our clients. The problems that arise in general practice of law, however, especially common in solo or small firm practice, usually involve the business aspects of the law practice.
Most of us did not obtain our MBAs as well as our JDs. We did not go to law school to become business managers or executives. Unfortunately, though, unless we hire an office or law practice manager, we who are in solo or small firm practice must establish office procedures and routines that will protect us in our “business” of law, as well as serve our clients’ needs. Therein lies the rub, but all is not lost if a few preventive techniques are employed.
Rule 1.01 requires competent and diligent representation of clients when an attorney accepts a case. The rule specifies, in part:
(b) In representing a client, a lawyer shall not:
(1) neglect a legal matter entrusted to the lawyer; or
(2) frequently fail to carry out completely the obligations that the lawyer owes to a client or clients.
(c) As used in this Rule neglect signifies inattentiveness involving a conscious disregard for the responsibilities owed to a client or clients.
Texas Disciplinary Rules of Professional Conduct, Rule 1.01(b), (c) (emphasis added).
Further, Rule 1.02 requires that the lawyer “abide by a client’s decisions” except for certain enumerated exceptions, such as fraudulent, criminal, or unethical conduct. See Texas Disciplinary Rules of Professional Conduct, Rule 1.02. This requirement may be waived, however, if the client “consents after consultation.” Id.
Finally, Rule 1.03 requires a certain level of communication with the lawyer’s client once the lawyer undertakes representation of that client. Specifically, the rule provides:
Rule 1.03 Communication
(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
Texas Disciplinary Rules of Professional Conduct, Rule 1.103 (emphasis added).
Thus, the lawyer is expected to diligently and competently represent his or her client, and to communicate sufficiently with the client to facilitate the client’s guidance of the representation. Sounds like a piece of cake, right? No. Here is a list of the common problems this author has seen that can lead to grievances concerning the above rules of professional conduct.
III. Common Problems that can Precipitate Grievances
1. Failure to Pursue the Representation in as Diligent a Manner as Needed
This problem is simply what happens when a busy lawyer takes on too many cases without sufficient assistance, perhaps accepts a fee or retainer (advance deposit), and then fails to follow through with the representation in an effective manner. Especially in highly sensitive matters, such as divorce, child custody, bankruptcy, etc., the client who is at emotional risk and in a heightened state of emotional angst expects the attorney to take care of his or her problems right away. Filing motions to continue hearings or, worse, failing to show up for a scheduled hearing, creates such anxiety with clients that they become easily frustrated and perhaps even angry with the lawyer.
2. Failure to Communicate with the Client
This deficiency is extremely important in preventing problems from developing in one’s practice. As simple as it sounds, I have seen many cases of attorney discipline that were exacerbated by a failure to communicate with the client. Often, the lack of sufficient communication becomes the issue when the client tries to get a status update on his or her case.
3. Failure to Refund Unearned Fee
When problems have developed with Rules 1.01 and 1.03, the lawyer may be avoiding the client for whom he or she has done little or no work for obvious reasons. But, the client who demands a refund of any retainer or advance deposit and is frustrated by the lack of prompt response by the lawyer may well be incensed enough to file a grievance against that attorney.
So, these problems may mushroom into grievances, which may be successfully defended or not. But, all of the above difficulties are easily prevented with advance planning for the general operating procedures in your law practice. The following strategies mirror the potential problem areas listed above.
IV. Strategies for Preventing Problems with Clients and Keeping Them Happier
1. Move Cases Along in a Timely Manner; Calendar Deadlines to Avoid Last- Minute Chaos and Total Unavailability to Other Clients
Sounds easy, right? But not always possible to work on each case every week or two when one or two demand intensive effort and time. What to do when some clients’ matters are getting back-burnered?? Employ deadline control systems in your office to ensure that you are not flooded with last-minute projects that need your undivided attention for days or weeks at a time. These deadline systems should provide two-week warnings, followed by one-week and then two-day warnings for project deadlines. The nature of the project should govern the time period for alerting the lawyer of the upcoming deadline; that is, if an appellate brief is due, that would necessitate a longer advance notice to the lawyer than a simple discovery response because of the longer time it takes to complete the brief. These deadline control systems can be computer generated or merely index cards or calendar jottings. The complexity of the system is not the relevant issue, but rather the success of the notice to the lawyer and the latter’s dedication in adhering to the notification and starting on the project reasonably in advance of the projected deadline.
Also, the attorney who can predict when he or she will be snowed under with a couple of matters, which may mean postponing work on some other clients’ cases, may decide to let those “back-burnered” clients know about the busy period in advance. Notifying especially the demanding/needy clients who may call and not be the most patient will help them anticipate your temporary unavailability. Such notice will be perceived as reassuring; remember that the demanding client is probably just feeling his or her anxiety more strongly than others. If the attorney can assuage some of that anxiety and fear by having staff return telephone calls or emails during busy periods, these clients usually will understand that the attorney simply cannot attend to them at that time. Ignoring these needier clients, however, just reinforces their perceptions that the attorney is forgetting their needs or placing them at the bottom of the priority list. Demanding, needy clients are the ones most apt to file grievances; plan accordingly and make sure that your staff is aware of the need to gently deal with their questions, concerns and anxiety or even anger at your temporary unavailability during deadlines on other cases.
2. Communicate Frequently with Clients Concerning the Status of Their Cases
When busy weeks and months engulf your practice, one strategy to consider is the previous drafting of a client letter that is saved in the general computer database that can be adapted to each “back-burnered” client by a legal assistant. The lawyer can jot a note for each client that personalizes the letter and give it to the assistant to incorporate in the standard letter. The receipt of such a letter from the attorney when least expected by the client will go a long way toward keeping that client happy and reasonably assured that the lawyer has not forgotten him or her even though nothing substantive may be happening in the case. Moreover, although the letter usually would “cost” the client, this type of assuaging letter may not even be charged to the client because of its preventive nature. For example, such a letter may read something like this:
Dear Client:
I wanted to let you know that I am still waiting to hear from your ex-wife’s attorney regarding the proposed language for the consent decree that I sent last month for their review and acceptance. I hope everything is going well with the temporary visitation; please let my legal assistant know if you are experiencing any problems with the exchange of [child’s name] like those that were previously happening. I will be in touch with you as soon as I have news or if I receive any documents which require your response.
I am tied up for the next couple weeks with several complicated pleadings that are nearing their deadlines, but if you have an emergency, please call and ask for [name of assistant] and she/he will get your message to me.
Yours truly, Communicative Attorney
Of course, do not just send letters to clients whose cases are taking a back seat. Every time you correspond with a client or send him or her a copy of a letter that was mailed or faxed to another on his or her behalf, that client feels important and reassured that you are pursuing his or her matter. Some attorneys tell me that their clients tell them not to bother with sending them copies of all correspondence, or that they (the attorneys) do not routinely send clients all copies of correspondence and pleadings due to the added cost of such a procedure. Although I am sensitive to adding excess costs to the representation, my experience is that the benefit of copying the clients on everything done for them is every bit worth the added cost, even if the attorney picks up some portion of that additional expense.
Also, given the requirement of Rule 1.02 to abide by the client’s decisions concerning the representation, if a client ever files a complaint suggesting that the lawyer did not pursue the matter diligently enough or do what the client desired, the lawyer will have a file demonstrating that the client knew every twist and turn of the representation and was invited to give feedback and direction all along the way. Be sure to include comments such as these in the client status update letters; e.g., “Please let me know what you think of this proposed language before I send it to [opposing attorney].” or “Please contact me with any suggestions of additional questions to ask in the enclosed interrogatories to your ex-husband.”
3. Provide Regular, Detailed Accountings and Statements to Clients
Detailed statements of attorney work provided on the case shows the client what activities you are doing on his or her behalf. Use your monthly statement to communicate with your client. Be specific about your activities and those of your assistants and staff even if some of those activities are written off as “No Charge.” The clients will like seeing what has been done for them and will especially like seeing some “No Charge” activities from your office.
V. Conclusion
While these problems and suggestions may seem trite and simplistic, regular office practices like the ones suggested in this article go a long way toward keeping clients happy. When clients feel as though their attorney cares about their problems (recall that law is a helping profession, after all!), they are much more forgiving of mistakes or delays in the representation. Happy clients not only prevent grievances – happy clients also refer many others to their wonderful attorneys. Thus, keeping your clients happy is another way of successful, stress-free marketing for your law practice!
*Deborah Henson, MSW, (Tulane), JD (Loyola New Orleans), L.L.M. (University of California, Berkeley), is admitted in Texas and Louisiana as well as the U.S. Fifth Circuit and the U.S. Supreme Court. She is also a Licensed Clinical Social Worker (Texas, Louisiana), who provides psychotherapy (specializing in lawyers and relationships) plus consultation to attorneys and mental health professionals regarding working together effectively in the legal arena (e.g., preparing for depositions and trial testimony). Ms. Henson was former Board Counsel for the Louisiana Attorney Disciplinary Board, then represented attorneys and other professionals in disciplinary (grievance) matters for years. She consults regularly with lawyers and mental health practitioners concerning ethics and risk prevention. Ms. Henson was the former Appellate Brief Writer for the City of New Orleans for the two years prior to Hurricane Katrina, which prompted her to evacuate and settle in Austin. She practices appellate law and is available for contract brief-writing to assist busy practitioners keep up with their deadlines and keep their clients happy! Ms. Henson can be reached at debhenson.austin2006@gmail.com or at 512/804-1985.
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