Avoiding Ethical and Malpractice Risks in Close Attorney-Client Relationships Brett J. Preston

Close Attorney Client Relationships Many risks associated with close attorney-client relationships arise from familiarity and complacency. Lawyers in such relationships become Overly familiar with the client and Complacent in the relationship

Familiarity and Complacency The quality or state of being familiar: having a good knowledge of something; natural and unstudied; arrogantly self-confident Complacency Satisfaction or contentment, especially when coupled with an unawareness of trouble or controversy; smug self-satisfaction Webster’s II New College Dictionary, Third Edition

Familiarity and Complacency Familiarity and complacency cause lawyers to: do things that they shouldn’t, and not do things that they should This creates risk Risk turns into grievance, claim, or suit when combined with change

Change Examples of change: Good relationship turns bad Close friend replaced by stranger Market downturn Bad outcome Misfortune, need to recoup losses Bankruptcy; trustee views lawyer as source of funds to pay creditors

“Takeaway” Advice Close relationships with clients should affect how, not whether, you adhere to fundamental risk management practices

Top 10 List Top 10 list of ways that Familiarity and Complacency cause lawyers to do things they shouldn’t and not do things they should, and what to do about them

10. They Cause Lawyers Not to Send Engagement Letters Tend to stop sending when get lot of cases Gen rep agreements are not specific to particular matters Malpractice claims arise from particular matters, not relationships – need letter specific to matter

Engagement Letters Benefit now: preparing engagement letters requires you to: identify your client(s) clarify (so you can articulate it) the scope of the representation Benefit later: engagement letter memorializes these things, for clarity if/when things change

Engagement Letter Advice Prepare an engagement letter/email for each new matter Adopt by reference a master or “preferred counsel” agreement Letter/email should specify: Who you are (and are not) representing What services you are (and are not) performing (How and when you will be paid) (Who will pay you)

9. They Cause Lawyers to Take a Casual Approach to Checking and Clearing Some Conflicts Lawyers in close client relationships still run names through conflict system But this is not enough when good client asks lawyer to represent one or more other parties, too

Conflicts Must consult with both/all prospective clients about potentially conflicting interests as between them (Rule 1.7 Comment) Must consult with non-paying client about services being paid by someone else (Rule 1.8(f)) Note: beware of “primary” or “real” client mentality

Conflicts Advice Have necessary consultation with each prospective client Memorialize consultation, consent, conflict waiver in a writing signed by them Treat all clients the same

8. They Cause Lawyers to Have Sex with Their Clients Rule 1.8 Prohibits lawyer from having sex with client unless they were having sex before their attorney- client relationship

Sex With Clients Advice Summary: OK to use sex to get clients Not OK to use clients to get sex

7. They Cause Lawyers to Take a Casual Approach to Written Communications Lawyers in good client relationships let their guard down in communications – oral and written Oral communications are fleeting Written communications will be around forever

Written Communications What is appropriate now may not be considered appropriate later: Recipient turns from friendly to unfriendly What was funny to friend is not funny to stranger What both of you knew was a joke does not read as a joke later Changing times/standards for acceptable humor Privilege is client’s; can waive for any or no reason

Written Communications Advice Every written communication should be Lawyerly and professional Unambiguous: literal, in jest, or hyperbole Avoids possible misunderstanding now, can’t be used against you later Front page test

6. They Cause Lawyers Not to Memorialize Important Things Lawyers in close relationships with clients often do not memorialize things that they should. Often out of fear that the client will perceive the communication to be “CYA.”

Benefits of Memorializing Not need to depend on memory Opportunity to fix errors/misunderstandings Things look different written than sounded spoken Allows others to know what happened Now – improves quality of service Your file is a toolbox, not a warehouse Later – improves quality of defense All of these things apply to confirming advice to clients and clients’ decisions

Memorializing Advice Do it – to improve legal services Do it - to improve defense of later claim

5. They Cause Lawyers Not to Consult Client About How to Handle the Matter Lawyers in close relationships with clients often do not consult with clients about how to handle the latest of a series of similar representations Why: momentum, inertia, past experience

How to Handle the Case Rule 1.2(a): ... a lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued.

How to Handle the Case Rule 1.4 Communication: (a) a lawyer shall: (1) promptly inform client of decision or circumstance that requires client’s informed consent; (2) reasonably consult with the client about the means to accomplish the client’s objectives; (3) keep client reasonably informed (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

How to Handle the Case Advice Must consult with client Close relationship should make consultation efficient, not cause it not to happen at all: “the usual?”

4. They Cause Lawyers to Withhold Bad News and Not Withdraw Lawyer’s desire to preserve a close attorney-client relationship may cause him/her to not share bad news “I can fix this” “I can’t lose this client.” “I don’t want Lawyer X to get a shot at this client.”

Disclosure and Withdrawal All of these approaches will make matters worse. BJP Advice for All Occasions: Make things better if you can, but whatever you do, do not make them worse

Disclosure and Withdrawal Rule 1.16(a): ... a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (1) the representation will result in violation of the rules of professional conduct or other law ...

Disclosure and Withdrawal Advice Adopt a clinical approach to admitting mistakes or sharing bad news with a client Withdraw from a representation when it becomes necessary Follow the advice you would give someone else in the same situation

3. They Cause Lawyers to Take on Matters They Are Not Competent to Handle Lawyers don’t want to give competitors an opportunity to represent good client Clients like to use their regular, “well trained” lawyers Result: lawyers agree to represent good client in an unfamiliar area of law

Competent Representation Rule 1.1 Competence: A lawyer shall provide competent representation to a client; competent representation requires legal knowledge, skill, thoroughness and preparation…. Comment: need not have special training or prior experience; competence can be achieved by reasonable preparation But: practicing law is hard even when it’s easy And: hard to play error-free ball when know all the rules; harder when you don’t

Competent Representation Advice Lawyers: Be cautious about taking a matter outside your wheelhouse Impress client with good referral (and set self up to get referral in return) Trust your client to continue to hire you to handle matters in your wheelhouse Clients: don’t push lawyer to take on a “foreign” matter

2. They Make Lawyers Chatty Lawyers talk a lot, especially about things that are important to them Clients and cases are important to them So, lawyers talk about clients and cases a lot Problem: ethical rules prohibit this 

Confidential Information Rule 1.6 (a) A lawyer shall not reveal information relating to the representation of a client unless informed consent, disclosure is impliedly authorized, or disclosure is permitted by paragraph (b) Applies to all information relating to a representation, regardless of whether that information is also privileged, Whatever its source

Confidential Information 1.6(b) exceptions do not include being at a cocktail party, bragging to your mom, or riding in an elevator

Confidential Information Advice Be as judicious about protecting confidential information as you are about protecting attorney-client privilege and work product privilege

1. They Cause Lawyers to Mistreat Those Closest to Them People tend to take for granted close relationships and the people with whom they have them Lawyer may give good client’s work lower priority than work of new client he/she is trying to impress “They’ll understand”

Hurting Those You Love Advice Treat good client with as much enthusiasm and as high a degree of service as you treat a new client that you are trying to impress Treat every new matter for a good client as if it was a first date

Final Thought on Familiarity and Complacency As soon as you become complacent your show gets canceled. --Dick Wolf