The lawyers that don’t get honesty and professional responsibility usually have issues early and often and many times find themselves selling fudge at the beach instead of practicing law. However, it is not uncommon for honest and reputable attorneys to go years without issues, and then to suddenly find themselves with complaints or claims. There is simply no way to predict when such situations might arise and, accordingly, you have to always practice like you just finished your ethics exam from law school.
I wrote here in March of 2013 about “The Appearance of a Secondary Interest”. I emphasized that conflicts remain a constant problem for lawyers. As time goes on, lawyers will tend to say, “Well, that’s not a conflict.” However, in the eyes of clients or laymen and jurors, there is no higher duty that a lawyer owes than the duty of loyalty and trust. Juries go “biblical” (i.e., as you cannot serve two masters) when a lawyer is perceived to have a conflict which affected his or her duty to the client that is now making the claim. A totally defensible case can be significantly compromised by the mere appearance of a conflict. It just colors everything. I suggest the use of a third party, whether counsel in your firm, or someone else to consult on conflicts. If there is enough of an issue to merit discussion, it probably merits study and consents from all involved. Plowing ahead with the idea of a “that’s not a conflict” is just asking for trouble.
Another area that causes a lack of client loyalty, if not complaints and actions, relates to the lack of diligence. Any lawyer worth their salt has more to do than she can get done. You must force yourself, and I mean really force yourself, to stay up with your matters and if nothing else, to communicate with the clients to tell them that you have been delayed, etc. When you look at a survey of state disciplinary claims, the lack of diligence complaints jump off the page. Many of those who get deeply behind in client matters then start concocting stories, or slipping out the back door. That makes everything worse. The legal items on your desk do not age gracefully like good wine and good cheese. You must act with reasonable diligence and promptness in representing a client or you’re in big trouble. It simply leads to a blown deadline and your professional liability deductible going out the door. I suggest you use your staff, your office calendaring systems, and all technology available to help you address the items on your “To Do” list. You all know that courts and administrative bodies solve that problem for you when you miss deadlines, but the same effect ought to be applied with every client matter. If you cannot do the basics, hire an assistant to remedy the issue. Otherwise, you might need to go sell fudge at the beach.
Finally, you ought to know what you’re doing. I routinely look at more than 30 new file openings every business day. I particularly make sure that the work to be done is in the right practice area, and more importantly, by a lawyer who has expertise in that area. As a brand new lawyer, I was interviewed by the firm’s most senior named partner my first week and he asked me what I wanted to do. I naively told him I would like to be a generalist and learn about the law. He was well up into his 80’s then, with only one sheet of paper on his desk in front of him, and looked at me and said, “Son, those days are gone.” The law had changed so much since he started in 1921 that he was encouraging each new lawyer at that time to develop a specialty. Honestly, that was well before the time that the rest of the Bar recognized that, but he was certainly right. A litigator can mess up a deed for Aunt Bertha quicker than Sherman went down Peachtree Creek. Lawyers cannot be all things to all areas of the law and simply must have the right expertise. A little lack of knowledge is truly dangerous in the law. A simple will done by the business lawyer may miss a critical simple thing.
There used to be a TV show in which the police sergeant as he dispatched the patrol officers out of the squad room would say to them every day: “Be careful out there.” In today’s modern environment for a lawyer, we need to heed that.
I wrote here in March of 2013 about “The Appearance of a Secondary Interest”. I emphasized that conflicts remain a constant problem for lawyers. As time goes on, lawyers will tend to say, “Well, that’s not a conflict.” However, in the eyes of clients or laymen and jurors, there is no higher duty that a lawyer owes than the duty of loyalty and trust. Juries go “biblical” (i.e., as you cannot serve two masters) when a lawyer is perceived to have a conflict which affected his or her duty to the client that is now making the claim. A totally defensible case can be significantly compromised by the mere appearance of a conflict. It just colors everything. I suggest the use of a third party, whether counsel in your firm, or someone else to consult on conflicts. If there is enough of an issue to merit discussion, it probably merits study and consents from all involved. Plowing ahead with the idea of a “that’s not a conflict” is just asking for trouble.
Another area that causes a lack of client loyalty, if not complaints and actions, relates to the lack of diligence. Any lawyer worth their salt has more to do than she can get done. You must force yourself, and I mean really force yourself, to stay up with your matters and if nothing else, to communicate with the clients to tell them that you have been delayed, etc. When you look at a survey of state disciplinary claims, the lack of diligence complaints jump off the page. Many of those who get deeply behind in client matters then start concocting stories, or slipping out the back door. That makes everything worse. The legal items on your desk do not age gracefully like good wine and good cheese. You must act with reasonable diligence and promptness in representing a client or you’re in big trouble. It simply leads to a blown deadline and your professional liability deductible going out the door. I suggest you use your staff, your office calendaring systems, and all technology available to help you address the items on your “To Do” list. You all know that courts and administrative bodies solve that problem for you when you miss deadlines, but the same effect ought to be applied with every client matter. If you cannot do the basics, hire an assistant to remedy the issue. Otherwise, you might need to go sell fudge at the beach.
Finally, you ought to know what you’re doing. I routinely look at more than 30 new file openings every business day. I particularly make sure that the work to be done is in the right practice area, and more importantly, by a lawyer who has expertise in that area. As a brand new lawyer, I was interviewed by the firm’s most senior named partner my first week and he asked me what I wanted to do. I naively told him I would like to be a generalist and learn about the law. He was well up into his 80’s then, with only one sheet of paper on his desk in front of him, and looked at me and said, “Son, those days are gone.” The law had changed so much since he started in 1921 that he was encouraging each new lawyer at that time to develop a specialty. Honestly, that was well before the time that the rest of the Bar recognized that, but he was certainly right. A litigator can mess up a deed for Aunt Bertha quicker than Sherman went down Peachtree Creek. Lawyers cannot be all things to all areas of the law and simply must have the right expertise. A little lack of knowledge is truly dangerous in the law. A simple will done by the business lawyer may miss a critical simple thing.
There used to be a TV show in which the police sergeant as he dispatched the patrol officers out of the squad room would say to them every day: “Be careful out there.” In today’s modern environment for a lawyer, we need to heed that.
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