Minimize the Risk of an Ethics Complaint
Some ethics complaints stem from the substantive practice of law — failing to research and argue well, failing to notify the court of an authority against your client, or other issues. Many ethics complaints, however, are at heart administrative failures. They include things like failing to communicate with clients, failing to meet deadlines, and failing to complete CLE requirements and accurately certify compliance.
The ramifications of an ethics complaint are huge, as consequences can range from private admonishments all the way up to disbarment. Don’t let administrative tasks trip you up and cause you trouble. Implement simple systems in your office to minimize your risk. Here are some suggestions to get you started:
Create a checklist to help you screen potential clients so you can try to avoid the things most likely to lead to trouble. Include in your checklist items such as:
- Subject area. Only take on clients where the primary areas of need are those in which you are experienced. If you want to expand your practice, get a mentor or find other ways to gain experience in a new field before taking on a client who needs those services.
- Ability to pay/retainer received. If your potential client cannot afford your services, you are likely to wind up in trouble. You cannot always just walk away from a non-paying client, and financial issues between you will lead to trouble. Make sure they can afford you, and get a reasonable retainer up front.
- Litigation history. If your potential client has a habit of firing or suing their attorneys or other service providers, this should be a red flag.
- Reachability. Clients often complain that attorneys do not communicate with them. In order to satisfy a client on communication, you must be able to reach them. Make sure you ask enough questions to know whether you can reach your client when you need to.
- Reasonableness of demands. If your client initially comes to you with demands you cannot reasonably meet (such as presenting you with a motion to dismiss when the opposition brief they are asking you to write is due this week), you may want to pass on the case.
Make sure to include on your list criteria from your own personal experience. Consider how to screen for issues that have caused you trouble in the past so they do not pop up again.
Beyond the specific items you include in your client screening checklist, do not ignore warning bells that ring in your head as you speak with a potential client. Believe in your sixth sense, and decline cases that are likely to cause you more trouble than they are worth.
Make sure you do not ruffle your clients’ feathers by failing to respond to communications. Put systems in place to keep you on track.
- Phone calls. Nothing irks a client more than an unreturned phone call. If you have trouble getting calls made, set aside a time each day for returning calls. Make it a habit. If you cannot get it done yourself, designate someone to return calls for you and set up a time to speak with your clients. Scheduling return phone calls can be an efficient and pleasant way to handle telephone communication, as both you and your client will be prepared to sit down and focus on your conversation.
- Emails. Right up there with unreturned phone calls are unanswered emails. Clients know that most of us are walking around with our smartphones all day, receiving emails as they come in. They expect responses. It is not always practical to tap out a response immediately, but make sure a day does not pass without a substantive response. Some aspects of a system you can set up to handle emails are: (a) Set up an out-of-office reply if you know you’ll be unable to respond all day. Something simple like “I am in court today and will not be able to respond until X time” will take the edge off of a client who might be sitting waiting for a response all day. Just make sure that when the time comes that you said you will be able to respond, you actually do. (b) Give a secretary proxy access to your emails so that you can ask her to respond when you cannot. (c) Reduce the junk mail that comes to your work email account. If the important emails are awash in a sea of store coupons and other junk, the chance of them falling through the cracks is great. Set up rules in Outlook or your email program to filter out the junk mail (beyond a spam filter). Set up a separate email address to use for signing up for store newsletters and such. (d) Make a last pass through your emails at the end of the day to make sure nothing has gone unanswered.
- Consider online portals and social media. There are many law practice management platforms available with secure client portals where you and your client can share information. These programs can be very useful in keeping clients informed, as they include functions like a calendar for each matter (so clients can see important dates like real estate closings and court hearings) and a place to house draft documents (so clients can see progress). One such platform, MyCase, contains a social media function that allows you to connect with clients online. You can also set up a secret group on Facebook to exchange information with your client. Consider whether a social media platform would fit well into your practice and client relations. Be sure to consider the site’s security when exchanging privileged information.
- Periodic updates. Clients like to hear from you, so long as they do not think the bill is being run up. Develop routine communications appropriate to your practice. In litigation, a weekly status update email might make sense. Pick a form of communication and do it routinely. Clients will come to expect it and will appreciate it. It will also cut down dramatically on the unscheduled phone calls asking simply for an update — the very types of calls that distract from your substantive work but which if unreturned lead to complaints.
As a lawyer, you simply cannot miss a deadline. There are lots of ways to avoid it.
- Electronic ticklers. If you use an electronic calendar, set automatic reminders. Make sure you remind yourself far enough in advance to actually do something about it. Honestly consider how you handle these reminders. If you automatically dismiss them because you find the pop up window on your computer annoying, then they will not do their job. Work with your own preferences to find a system that will work for you. You may need to have another person (perhaps the same one who helps you return phone calls) also get these ticklers to remind you.
- Old school paper tickler file. Set up a file card system with a card for each day of the year. Mark all important deadlines on these cards on the designated day. Every morning, check your tickler card for the day and the next seven days. Make sure that today’s tasks are completed by the end of the day and the tasks for the upcoming week are in the works.
- A master calendar. Pick one method of calendaring and make that the master calendar. Having too many places to look (a calendar on your phone, one on your wall, another in your briefcase) ensures that something will fall through the cracks. Even if you find you need to use a different calendar when you are out and about to make notes of appointments, be sure to transfer all your notes to the master calendar at the end of each day.
- Get recurring tasks on the master calendar. Some tasks recur each week or month. Weekly meetings every Monday, bills due every 15th, etc. Get those tasks on your master calendar.
Clients do not like surprises on their bills. Make billing a routine task with pre-determined client communications throughout the billing cycle. For example:
- Daily time tracking. Time tracking entered after the fact will never be as accurate as time entered contemporaneously. Enter it every day. There are lots of great electronic law practice management systems available for this task now. If they don’t work for you, make your own system — taking your scraps of papers at the end of the day and recording them, having a master legal pad where you write down all your time for all matters, or a page on the top of each of your files where you write down your time each day. Whatever works for you, do it consistently.
- Monthly billing. Prepare your bills on the same day of the month, every month. Clients need to plan their finances and so do you. Get the bills out at the same time every month to avoid surprises.
- Incremental billing. If you know that a client is likely to exceed his retainer during the month, set a reminder to check your time and bill for the month on a specific date. Clients do not like to receive a huge bill at the end of the month when they think you are still working on the original retainer.
Compliance with mandatory CLE is very important to avoiding ethics complaints initiated by the regulatory authorities. Attorneys may be prosecuted for failing to keep accurate records or failing to actually complete their CLE. Make sure you meet your requirements by the deadline. Most importantly, make sure that once you have certified your compliance, you retain your documentation somewhere you can easily locate it in case you are audited.
Setting up systems like these can seem time-consuming, so you may be tempted to put them off. However, once they are in place, they relieve a lot of stress. If you know you track your time every day, it will not grow into a monumental task. If you know that bills will be prepared and sent on the 25th of every month, you will not worry about them on the 15th. And if you are away for a week, whoever assists you during your absence will be able to keep your practice on track. Most importantly, with systems in place to handle client relations, you minimize your risk for an ethics complaint — and that is definitely worth an up-front time investment.
(image: Worried businessman with problem or headache from Shutterstock)