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

2. 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

3. 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

4. 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

5. 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

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

7. 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

8. 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

9. 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

10. Engagement Letter Advice
Prepare an engagement letter/ for each new matter
Adopt by reference a master or “preferred counsel” agreement
Letter/ 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)

11. 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

12. 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

13. 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

14. 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

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

16. 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

17. 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

18. 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

19. 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.”

20. 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

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

22. 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

23. 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.

24. 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.

25. 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?”

26. 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.”

27. 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

28. 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 ...

29. 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

30. 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

31. 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

32. 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

33. 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 

34. 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

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

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

37. 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”

38. 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

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