OCDC Articles - The Lawyers on the Front Line
Published: Nov 28, 2009
By Marc A. Lapp
The answer is contained in the Report of the Office of Chief Disciplinary Counsel for the year 2008. In fact, the answer has been the same since 2001, and likely since statistics were first kept. For each of the past 8 years, those lawyers in the practice areas of domestic relations, criminal defense or torts were the subjects of at least half of all ethics investigations. Lawyers in other practice areas are not immune from receiving complaints and being the subject of an investigation, of course. Year to year, there are a significant number of complaints and investigations against lawyers in the practice areas of estate/probate, bankruptcy, worker’s compensation, real property, labor and traffic law, among others. And, no conclusion should be drawn that lawyers in particular practice areas are more or less ethical than lawyers in others.
The sizable practice area disparity in ethics investigations has to do with the combustible combination of representing an individual client who is under stress, lacking control over his or her fate, paying what is perceived as a lot of money, inside an environment of high, and perhaps unrealistic, expectations. This powder keg best describes the situation for a client who is dealing with divorce, facing jail time or suffering from injuries or damages. If the client perceives the end result of the legal representation as bad, or is upset with how the legal process unfolded, it is not uncommon for the client to lash out at the lawyer with an ethics complaint, justified or not.
That complaints tend to come more often from disillusioned or disappointed clients of lawyers practicing domestic relations, criminal defense or tort law, rather than from other practice areas, becomes more apparent when appreciating how reliant the typical individual client is on the lawyer and his or her professional, legal representation:
As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others. As an evaluator, a lawyer acts by examining a client’s legal affairs and reporting about them to the client or to others. (Rule 4, Preamble: A Lawyer’s Responsibilities )
With life, liberty and/or money on the line, these clients rely on their lawyer to wear all four hats. These clients typically are desperate and want very much to feel that their lawyer is in their corner. Although it is imperative that all lawyers recognize the importance of good client communication and diligence in their legal representations, this particular group of lawyers regularly faces close scrutiny from their clients.
It should therefore come as no surprise that the most common client complaint leading to an ethics investigation is based, at least in part, on allegations of poor communication (Rule 4-1.4) or lack of diligence (Rule 4-1.3). Each year, over the past 8 years, communication or diligence was a subject of over half of all the ethics investigations.
Again, no conclusion should be drawn that lawyers in particular practice areas communicate or pursue a legal representation more or less ethically than lawyers in others. In the powder keg scenario for the lawyers on the front lines of legal representation, however, where the clients are so reliant on their lawyers, what the clients observe and experience about the legal representation go a long way in determining how they may react if they are unhappy with the process or the outcome.
From the hundreds of investigations conducted by the Regional Disciplinary Committees each year, certain lessons can be drawn to help lawyers avoid a client complaint and possible investigation arising out of the performance areas of communication and diligence. These lessons are applicable for all lawyers, but are particularly significant for those lawyers representing individual clients facing personal, challenging circumstances:
1. Execute a Retention Agreement: The lawyer’s agreement with the client as to the specific terms and fees of the representation should be memorialized in writing. The lawyer should take the appropriate amount of time to explain the agreement fully, including the different scenarios that may play out in the legal representation. This is also the time when the lawyer should discuss the realistic expectations from the legal representation. This discussion should include expectations about the method and frequency of communication between the lawyer and client, expectations regarding the time it will take for each step of the legal representation and expectations as to the various possibilities of the final outcome. If expectations are clearly explained, there is less chance for client confusion and frustration. (Rule 4-1.2, 1.5 and Comments)
2. Regularly Communicate: The lawyer should regularly communicate with the client as to what is going on in the legal representation. The client needs sufficient information to participate intelligently in decisions regarding the objectives of the representation and the means by which they are to be pursued. If the lawyer’s busy schedule does not always allow personal communication when a client calls, a legal assistant or another lawyer in the firm should respond. Also, copying the client on all correspondence will likely minimize the number of occasions when a client will request information concerning the progress of the representation. Knowing what is occurring with respect to the legal representation will reduce client anxiety. (Rule 4-1.4 and Comments)
3. Be Diligent: Keeping a calendar, tickler and diary system is essential. A lawyer should have a clear plan of action, including checklists to mark and achieve the goals of the legal representation. If regularly made aware of what is happening, the client will more likely appreciate the lawyer’s commitment, dedication and zeal exercised on his or her behalf. (Rule 4-1.3 and Comments)
Typical client complaints the Regional Committees hear are: “my lawyer doesn’t return my telephone calls,” “my lawyer is not working on my case” and “my lawyer never warned me that this could happen.” Such complaints, although one-sided, reflect the client’s frustration in not knowing what is happening or has happened with respect to the legal representation. Realistic expectation-setting, followed by regular communication, including updates of ongoing efforts made on the client’s behalf, will go a long way in reducing anxiety and frustration, and the likelihood of a client filing a complaint.
All of these lessons are part of good practice management and a reminder of a lawyer’s ethical responsibilities. The Bar Association of Metropolitan St. Louis, the Missouri Bar and other continuing legal education sponsors conduct regular seminars on the ethics of practice management and offer resources such as a practice mentor for those who would like to take advantage.
For additional information on the Missouri attorney disciplinary process, please visit the official website of the Office of Chief Disciplinary Counsel: http://www.mochiefcounsel.org
Marc A. Lapp is a Special Representative to the Office of Chief Disciplinary Counsel, investigating ethics complaints and prosecuting professional misconduct for the Region X and XI Disciplinary Committees. Marc is also Claims Counsel for Chartis Insurance in Clayton.