Clarity is Key

As lawyers, we like to think we excel in communicating our thoughts, ideas and arguments to others.  Yet sometimes, we forget that it is important to be direct, concise, and clear when describing ourselves in advertising, when communicating with potential clients, and when communicating with clients.  Here are some ways lack of clarity can get you in trouble:

Violation of Advertising Rules

If we are not precise when describing ourselves, our experience, or our services in advertising, we may run afoul of the advertising rules.  For example, many attorneys advertise, “You pay no fee unless you recover.”  The intent may be to say that you do not pay an attorney fee, but you may still be responsible for costs.  The problem here is that “fee” is undefined, and the average client is not going to understand that they still may be responsible for costs even if they lose their case.  2004 FEO 8 requires that an attorney say “no attorney fee unless you recover” so that it is clear.  Keep in mind that certain other statements, such as any statement about results, must include appropriate and conspicuous disclaimer language as well.

The Accidental Client

Suppose you regularly represent a corporation, but on some occasions, the officers come to you with legal questions, and you provide answers. Or suppose someone asks you a legal question, on-line through social media, and you provide a general response.  In either situation, you likely have created an attorney client relationship. I would recommend not undertaking to provide legal advice to anyone under any circumstances unless you are prepared to engage in an attorney-client relationship.  Even if you don’t provide specific advice, the person who is consulting with you may believe that you are their attorney.  If you accidentally create an attorney-client relationship, keep in mind that you owe that person duties under the Rules, including confidentiality, loyalty and communication.  You may also inadvertently conflict yourself out of a matter or raise liability issues if you are not vigilant.

Confused Client

A confused client is more likely to file a grievance against his or her attorney.  Make sure you clearly define the scope of representation and fee for services. If you charge a flat fee just to prepare a simple will, make sure the client understands that additional legal documents will be extra. Be clear about how your fee is determined and when payment is due.  If you are not retained until paid, then say so. In addition, a contingent fee agreement must be in writing and must also include an explanation about how the fee will be calculated. Rule 1.5. Also, let your client know when the relationship has terminated. If the client only paid you for a consultation, but did not ultimately retain you to represent them, make sure they understand (1) you do not represent them, (2) they need to consult with other counsel, and (3) when the statute of limitations runs.

As always, we recommend that you put everything in writing when possible.  Even a confirming e-mail is better than nothing.  And remember, clarity is key.

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Avoiding a State Bar Grievance: Client Fee Disputes

Fee disputes, including a lawyer’s attempt to collect a fee, are a common source of client complaints to the State Bar. To help avoid a grievance, not only with fee disputes but with any area of law practice, it is beneficial to periodically read the Rules and assess if you are implementing them in your practice. Specifically, Rule 1.5 provides a lawyer having a dispute with a client regarding a fee must make reasonable efforts to advise the client of the existence of the State Bar’s Fee Dispute Resolution Program at least 30 days prior to initiating legal proceedings to collect the disputed fee. While it is optional for the client to participate in the fee dispute resolution process, it is mandatory for the lawyer to participate if the client makes the request.  The Comments to the Rule provide that client notification must occur not only when there is a specific issue in dispute, but also when the client simply fails to pay. (Note, however, when the client expressly acknowledges liability for the specific amount of the bill but states that he or she cannot presently pay the bill, the fee is not disputed and client notification is not required but likely still is a good idea.)

For example, if your fee agreement provides for a 30% contingent fee, you can take the entire fee out of the trust account and move to the operating account once the settlement check is deposited and cleared. However, if your client argues that you are only entitled to a 20% fee, for instance, then the 20% that you and the client agree has been earned must promptly be removed from the trust account.  However, the disputed amount, the remaining 10% fee, must remain in trust until the dispute is resolved by agreement or court order.

But what happens if the client notifies you that he disputes the fee, but then he fails to file a fee dispute petition or to initiate legal action to recover the disputed funds? The effect of the Rules alone would force you to hold the disputed funds in trust indefinitely.  To avoid this result, Ethics Opinion 2006 FEO 16 provides the lawyer may transfer the disputed fee from the trust account to the operating account under the following circumstances:

1)      The lawyer has given the client 30-days written notice of the fee dispute program required under Rule 1.5(f);

2)      The client fails to elect fee dispute resolution;

3)      The funds held in the trust account are for services rendered and are not clearly excessive;

4)      After the 30 days has expired with no fee petition filed by the client, the lawyer gives the client a second written notice that the funds will be transferred to the operating account unless the client initiates legal action within 30 days. (If, at any point during the 30 days, the client elects to participate in the fee dispute program or initiates legal action to recover the funds, the lawyer must, at that point, hold the funds in trust pending resolution of the dispute); and

5)      Expiration of the second 30-day time period.

Once that second 30 days is up, you may transfer the disputed funds into your operating account.  Knowing and utilizing the Rules can go a long way in avoiding State Bar grievances and other costly disputes with clients.

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Are You a Good Boss?

One of the fundamental principles in running a successful law practice is being a good leader.  Have you ever asked yourself, “Am I a good boss?”  How to be a good employer is not something ordinarily taught in law school.  If you’ve ever worked for someone who was not a good boss, then you know how important it is to be one.

Many lawyers who run their own practice wish they could just get down to the business of practicing law.  But if you want to keep your practice running, then it is important that you wear many hats: you’ve got to be an effective manager, delegator, organizer, advisor and mentor.  If you are truly a solo practitioner—with no employees or staff–you may ask why you should care.  It is likely that at some point in your practice, you will need help.  No lawyer is an island, so even if you are not someone’s boss right now, you may become one.  Here are some tips for running a tight ship that stays afloat and doesn’t run aground:

1)      Hire the right person for the job.  Consider employing a headhunter.  You shouldn’t be spending your time doing background checks, doing the initial review of resumes, etc.  The right head hunter can vet candidates and present you with a smaller pool from which to choose based upon the criteria you have set.

2)      Hire only the staff you need.   Ask yourself, “Do I need full time or part time staff?”  “What will this person be doing?”  “Do I really need a certified paralegal if the person would also be handling lots of administrative work?”  Don’t hire a full time paralegal when that person may only be doing occasional paralegal work.  If you hire someone who is overqualified for the job they are doing, they may become quickly dissatisfied.

3)      Once you hire, train, train, train.  Your new hire needs to understand not only the work that is expected, but also the Rules of Professional Conduct and your firm’s policies.  Training doesn’t necessarily end once the person settles in.  Rules change and policies change.  Periodically reassess and see if you need to have a meeting to remind your staff of older policies or rules that may be overlooked or to educate your staff on changes to the rules and policies of the firm.

4)      Oversight is paramount. Attorneys get into trouble with staff in two primary ways:  a) over-delegation and b) lack of appropriate supervision.  For example, it’s no problem to delegate daily trust accounting to staff, but make sure you are reviewing the reconciliations and spot checking source documents.

5)      Clearly set expectations.   Don’t expect your staff to know what you want.  If it is important that everyone arrive by 8:30am each morning, or that business casual is OK only on Fridays, then say so.

6)      Give praise where praise is due.  Your employees need to feel appreciated.  Recognizing them for a job well done goes a long way in keeping staff morale up.

7)      Constructive criticism is important.   Do a mid-year and/or year-end review.  Never criticize an employee in front of others.  Make sure the review includes both strengths and areas of improvement if necessary.

8)      Set goals and an action plan for achieving those goals.  These may be individual goals or firm goals.  Firm goals can be used to create a team atmosphere within the firm, where everyone is working together toward a common goal.  If the firm is doing well, consider across the board bonuses.

9)      Ask for your employees’ input on ways to improve. This would include how the practice can improve and (here’s the hard part) how you can improve as an employer. It is important that you ask for and accept feedback not only so that you can address problems that employees identify, but also, so that the employees understand that their opinions are valued.

10)   Recognize the balance between work and a personal life.  Offer flex-time or personal days.  Find out the situation before you ask an employee to work longer hours.

If you are a good boss, it is more likely that you will have good, productive, happy employees.  For those of you who have lawyer and/or non-lawyer staff, you know we rely upon them tremendously in our practices. Employee dissatisfaction or low morale can affect the success of your firm. Take some time this year to assess how you are doing as leader of your firm.  It could make all the difference.

This was originally published in the Law Practice Management Newsletter, NCBA, February 2014.

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A Difficult Lesson to Learn

I would venture to say that most attorneys have had a scenario somewhat like this:

Your family member, friend, or former colleague asks you to help them with a legal issue.  You don’t typically practice in that area of law, but you really want to help.  You are pretty sure you can figure it out.

Or what about this scenario?  A client hires you to help with a legal issue.  You have a great rapport with the client, and you understand that they are going through a particularly difficult time their life.  You think that there must be more you could do to help and maybe you could veer from the course you would normally take with just this one client.

Beware!  Proceed with caution.  Though it is admirable to want to go out of your way to help in these situations, it is not always wise.  You never think that the clients for whom you go above and beyond would file a grievance against you, but it is very common in these scenarios.  It is wise not to deviate from how you would normally handle a case, even if a particular client evokes a great sense of sympathy.   At a recent CLE I attended, Warren Savage from Lawyer’s Mutual advised, “even if it is an ‘easy’ relationship, follow the same procedures.” Prepare a fee agreement, even for a friend.  Document everything, just as you normally would with any other client.  Be careful not to stray too far outside your area of expertise without adequate preparation.  Another wise person recently stated “there is no friends and family exception” when it comes to a grievance.

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Avoiding a State Bar Grievance: Managing Client Expectations in PI Cases

Every year, the State Bar receives thousands of complaints about lawyers and opens approximately 1500 grievance files a year.  A personal injury practice can be challenging, but attorneys practicing in this area can avoid the errors and pitfalls that often create grievances.

I recently interviewed Drew Haywood, a personal injury attorney in Durham, about his practice.  Drew was adamant that setting and managing client expectations throughout the representation is the key to avoiding grievances and gaining satisfied clients. From my interview with Drew and from representing attorneys who have had grievances filed against them, I assembled a list of best practices for managing client expectations in a personal injury practice:

  1. Communication. The first step in managing expectations is communication. There will likely be aspects of the case that create challenges. If the client knows about these issues and is prepared at the outset, it is easier to deal with them down the road. A substantial portion of grievances come not from incompetent representation but from lack of communication with clients. So keep in touch with the client whether there is good news, bad news, or no news. The number one complaint by clients to the State Bar?  My attorney does not return my calls, e-mails, letters, etc.
  2. Written and Detailed Fee Agreements. Fee disputes can lead to a lawsuit or a grievance filed with the Bar, so fee agreements are critically important and are required if the fee is contingent on the outcome of the matter.  The contingent fee agreement should explain the scope of the representation and how fees are calculated. The agreement should also state whether expenses will be deducted before or after the attorney fee is calculated. Do you intend to seek reimbursement from the client for advanced costs in the event of no recovery?  If so, put it in there.  If you charge the client for advanced costs, keep the client informed of the costs as they occur.
  3. Settlement Statements. Provide disbursement settlement statements to clients when the case concludes showing where all the funds came from and where they are going including costs, liens, payments outstanding, attorney fees, and the net amount the client will receive.  It is a good idea to include a copy of the fee agreement, liens, the release, and receipts for all payments made on behalf of the client as part of the settlement packet. The settlement statement may also serve as the final accounting if you include enough information and can show that the net balance, after disbursing all funds, is zero. If there is no recovery, a statement should be provided noting any costs to be reimbursed.
  4. Medical Lien Resolution. Lien resolution is a complex area and can be time consuming in a personal injury practice.  Drew advised that the key is to know, understand, and follow the guidelines.  Creating a chart of providers, the amount charged by each, the amount paid, amounts outstanding, and any possible lien claims will benefit both you and the client. At the outset of the representation, ask the client to sign a disclosure statement which identifies any benefits they receive that may result in a lien. Likewise, prior to settlement, give notice of liens if possible to the client and explain which funds may be withheld or may cause a delayed disbursement

Drew pointed out attorneys are often afraid to set client expectations on the front end because they are afraid of losing the client.  However, managing client expectations can go a long way to establish your credibility, keep your clients happy, and avoid a grievance.

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Inadvertent Disclosure of Privileged Information – Major Headache or Minor Hiccup? Part 2

Once you have navigated and closely followed the rules regarding how to handle inadvertent disclosure, a very important question remains: Does inadvertent disclosure destroy the privileged nature of the communication?

This is an interesting question and one that the RPCs seem to avoid.  In fact, Comment 2 of RPC 4.4 states that “the question of whether the privileged status of a writing has been waived” is “a matter of law beyond the scope of these rules.”

So how does North Carolina case law address this issue?  Case law in NC regarding this issue is “not well developed.”  Blythe v. Bell, 2012 NCBC 42 (N.C. Super. Ct., July 26, 2012) 2012 WL 3061862; see also Morris v. Scenera Research, LLC, 2011 NCBC 33 (N.C. Super. Ct., Aug. 26, 2011), 2011 WL 3808544.  The Court in Morris had used the Fourth Circuit’s “five-factor balancing test” to determine if the privilege had been waived upon inadvertent disclosure.  The Court elected to use the Fourth Circuit’s test in that particular case because the issues arose during discovery while the case remained in federal court awaiting remand, and the discovery plan was developed using the federal rules.  Blythe at ¶ 51 citing Morris.  The Court in Blythe opined that the Fourth Circuit’s test was “an appropriate vehicle for the North Carolina state courts.”

So what are the balancing test factors?

(1)    The reasonableness of the precautions taken to prevent inadvertent disclosure;

(2)    The number of inadvertent disclosures;

(3)    The extent of the disclosures;

(4)    Any delay in measures taken to rectify the disclosures; and

(5)    The overriding interests of justice.

Blythe at ¶ 52 citing Morris, 2011 NCBC 33 at ¶ 45.

Are some factors more important than others?  The Court in Blythe found “that the balancing test is controlled by the first factor, and that the absence of reasonable precautions undertaken before the production of privileged communications prevents the court from using the other factors to protect against waiver.”  Blythe at ¶ 53.  The Court also stated that “[w]hether the efforts were ‘reasonable’ obviously depends on the particular circumstances that may vary from case to case.”  Blythe at ¶ 54.

So, in short, the answer to whether the privilege is waived by the inadvertent disclosure is one that will vary.  Because there is no clear answer, it is very important to ensure you have procedures in place to prevent inadvertent disclosure of privileged information, but if you happen to disclose such information, notify opposing counsel as quickly as possible to hopefully resolve the matter.  It is wise to keep professionalism in mind when deciding whether to challenge the privilege, as this situation could just as easily happen to you.

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Inadvertent Disclosure of Privileged Information: Major Headache or Minor Hiccup? (Part 1)

You are going through the discovery materials that opposing counsel sent you when you come across a document that is marked “Privileged.”  How do you handle this situation?  What are your duties?  What if the document is not clearly marked privileged, but you begin to read it and immediately recognize that it is privileged communication?  What if that privileged document contains the evidence you need to prove your case, the “smoking gun” so to speak?  What happens to the privilege?  Is it destroyed?

When considering these questions, you will find some guidance in Rule 4.4(b) of the North Carolina Rules of Professional Conduct.  Rule 4.4(b) states that “[a] lawyer who receives a writing relating to the representation of the lawyer’s client and knows or reasonably should know that the writing was inadvertently sent shall promptly notify the sender.”  Comment 2 under this rule indicates that notification is necessary in order to “permit that person to take protective measures.”

What protective measures can the sender take after he inadvertently produces information?  Rule 26(5)(b) of the North Carolina Rules of Civil Procedure lists the steps necessary for both parties when privileged information is inadvertently produced.  Specifically, the sender may assert a claim to privilege by notifying opposing counsel of the claim and basis for it.    Upon receiving notification of the claim, opposing counsel then “(i) must promptly return, sequester, or destroy the specified information and any copies [he] has, (ii) must not use or disclose the information until the claim is resolved, (iii) must take reasonable steps to retrieve the information if the party disclosed it before being notified, and (iv) may promptly present the information to the court under seal for determination of the claim.”  The sender must then take care to preserve the information until the court determines whether the information is indeed privileged.

If you have determined that the document received is privileged, and you are confident you know what your duties are after reading RPC 4.4(b) and Rule 26(5)(b), the question becomes, can you read or continue reading the document?  The Rules of Civil Procedure do not answer this question and Rule 4.4 and its comments effectively overruled a previous ethics opinion (RPC 252) concluding that a lawyer should refrain from reading it.  A more recent opinion dealing with review of employer-obtained e-mails between the employee and his attorney suggests that whether an attorney may read the contents depends upon whether the privilege has been waived by the disclosure of the information.

If Attorney A is able to conclude, confidently and in good faith, that the privilege was waived, he may read the emails and use them to represent his client. However, in deference to the bar’s interest in protecting the attorney-client privilege, Attorney A should err on the side of recognizing the privilege whenever an analysis of the facts and case law is inconclusive. If a matter is in litigation, Attorney A may seek the court’s determination of the waiver issue.

2012 FEO 5, Opinion #3.  This opinion does not deal with inadvertent disclosure, but the quoted language is still instructive.  As a matter of professionalism, if you believe the information produced is clearly or likely protected by the privilege on its face, our advice would be to refrain from reviewing the information.  If you are certain the privilege has been waived, then it appears you may ethically review the information. If you are uncertain about the privileged nature of the document, you may need to review some or most of the document to make that determination.  Ultimately, you should always notify opposing counsel that you have received a potentially privileged communication, and you should not attempt to use an arguably privileged communication without court resolution or consent.   Although the ethics opinions do not clearly prohibit the review of privileged information if inadvertently produced, if you are ever presented with this dilemma, just think about how you would want opposing counsel to handle this situation if it were you that inadvertently disclosed confidential information.

The question of whether the privilege is waived by inadvertent disclosure will be discussed in part two of this blog.


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Effectively Managing Online Client Reviews

I recently read a blog by AVVO’s General Counsel, Josh King, regarding online client reviews.  His article caught my attention because AVVO publishes online lawyer ratings, reviews, and disciplinary records for lawyers.  I grew even more interested (read: fearful) when I discovered ratings and comments can be posted without my consent or knowledge.  In his blog, Mr. King addresses the fact that lawyers are averse to being simply a product consumers can review when he said, “I’ve heard every possible concern from attorneys: clients in my area are psychos, they can’t evaluate legal work, they have unreasonable expectations, etc.  It’s the ‘lawyers are different’ mantra. But you’re not. You’re a toaster.

social media pic

Or a luxury hotel.  Is that better?”

Mr. King is likely right. Like it or not, lawyers and their services are being evaluated and reviewed by their clients. So what do lawyers do about it?

Some of the best practices for handling online client reviews are:

  • Request that happy clients post reviews. By encouraging positive reviews, they will outnumber any negative ones.
  • Be proactive and communicate often with your clients to increase the number of happy clients. A client that feels valued and important is less likely to post a negative review.
  • Regularly review all online client feedback.
  • Respond to any negative client reviews by apologizing for their dissatisfaction and offering to personally speak with him/her to find a resolution to the matter.  A professional response can go far.
  • Stay away from reviews-for-hire.  It’s a growing industry but ethical violation.
  • Never respond to a negative client review by breaching client confidentiality.

The last point is an important one.  Last month, an Illinois attorney stipulated to a public reprimand for violating client confidentiality where she responded to her client’s negative review on AVVO. [The disciplinary complaint is at].  The client, a former flight attendant with American Airlines, retained the attorney to secure unemployment benefits where the client had been terminated for allegedly assaulting a co-worker.  The client was denied unemployment benefits, terminated the attorney, and posted an unfavorable review.  The attorney retorted online, “I feel badly for him but his own actions in beating up a female coworker are what caused the consequences he is now so upset about.” By failing to craft a professional response, the attorney was reprimanded by the Bar and let an opportunity pass.

So instead of fighting (or fearing) online client reviews, use it to your advantage.  The positive reviews by your happy clients may generate new clients, and the negative ones can be a chance to improve your professional services.

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Make the Call…

I recently had an issue with a medical bill that was not being paid correctly.  After multiple calls to the insurance company and the medical practice’s billing department, I finally figured out where the glitch was.  Apparently the physician’s bills were not being submitted under her correct “Provider ID.”  I contacted the office manager at the practice to advise her of what was going on, and I received no return call.  I waited several days and left another message, and again, I received no return call.  After leaving the third message, and getting no response, I was very frustrated and a bit angry.  Why couldn’t this person take a few minutes of the day to call me?  Who else could I call to get something done?

This unfortunate situation made me think of one of the most common complaints clients have about their attorneys.  It is understandable that clients get angry when an attorney does not promptly return their phone call.  The longer the period of time that passes between the initial message and the attorney’s response, the more frustrated the client becomes.  Wouldn’t you feel the same way?  When you call someone back, you are not just conveying the words, you are telling that person that what they said matters to you.  Even if you are unable to handle the client’s request immediately, simply letting the client know that you received the message and you will address the issue, is often enough to put his or her mind at ease.

Most attorneys have a client or clients who are very difficult to speak with.  You can find yourself thinking that you would rather do ANYTHING but call this person back.  I wrote down a phrase from a Lawyers Mutual CLE I attended last February called “Wrestling With Ethical Dilemmas – We Have Met The Enemy…”  The following phrase has run through my mind a lot since I attended the CLE, as it is applicable to life in general:  “Do What’s Harder When It’s Easier.”  Even though you would rather put off that phone call until MUCH later, make yourself call.  Even if the client is exhausting or you are delivering bad news, it is easier to have the conversation now than to face a grievance down the road.

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Out with the Old, In with the New: Closed File Storage

Many people box up old files, put them in storage, and hope they never see them again.  Attorneys, however, should store client files in a way that would be easy to retrieve if called upon to do so.  Further, attorneys have a duty to maintain and dispose of client files in a manner consistent with our ethical guidelines.

RPC 209 provides that the original file belongs to the client and, because an attorney has a duty to safeguard the property of a client, the client files must be stored in a secure place.  Closed client files can be destroyed anytime with client consent or after a six year period from the conclusion of the representation.  Keep in mind some situations may require that the attorney retain the file or a portion of the file for a longer period. For example, in destroying files, attorneys should not destroy (1) property which actually belongs to the client, (2) information useful in the assertion or defense of a client’s position in a matter for which the statute of limitations has not expired, or (3) original documents of independent legal significance such as an original will or stock certificate (which must be maintained indefinitely or returned to the client).

Some useful points when preparing client files for disposal:

  • Keep a running list of the file name, the closure date, and the date it may be destroyed.
  • For hard files, group files together in a box that may be destroyed at the same time.  Label the box with a number and a list of the files contained in it.
  • For electronic files, off-load files in a secure place and indicate when they may be deleted.
  • Review the file before closing or placing in storage and gather any property belonging to the client. The property should be either returned to the client or retained until the items are deemed abandoned and escheat to the state under Chapter 116B. RPC 209
  • Make note of any applicable statute of limitations on the file that runs longer than the six-year file retention requirement.
  • After six years, the lawyer is not required to notify the client, and the file can be destroyed, subject to the above three exceptions.
  • The Rules do not provide for any particular method for destroying client files; however, the method must preserve client confidentiality.
  • A record of all destroyed client files should be maintained indefinitely. See RPC 209.

A little work to organize and prepare closed files for disposal on the front end will save you lots of time and energy on the back end when it comes time to dispose of the files.

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