Coping with Mistakes

Mistakes happen.  The practice of law is complex, clients don’t always follow through as directed, and sometimes we commit errors.

The emotion of being caught up in a legal malpractice claim can be overwhelming:

A significant measure of a person is not whether he or she avoids trouble, but how he or she meets it when they find each other…. I have developed immense respect for many of our covered parties, not because of their perfection as lawyers (they weren’t perfect), but because of how they coped with the claim.
Bruce Schafer, PLF Director of Claims – Parting Thoughts: Lawyers are like other people.

Help is here if you are feeling stressed or overwhelmed

Take this advice from the Professional Liability Fund:

We recognize that having a legal malpractice claim filed against you is often very upsetting. Lawyers react in many different ways, including anger, loss of confidence, anxiety, avoidance, and inability to focus.  If you would like assistance coping with the stress or other challenges associated with a legal malpractice claim, the Oregon Attorney Assistance Program offers free and confidential support and assistance. Information you provide to OAAP Attorney Counselors is not shared with the PLF Claims staff, your defense counsel, or any other person. In fact, no information is disclosed to any person, agency, or organization outside the OAAP without your consent. For free and completely confidential assistance call 503.226.1057 or 1.800.321.6227 (OAAP).  NOTE:  We ask that you do not discuss the facts or merits of the case with anyone other than the PLF, defense counsel, or others with whom you maintain a legally confidential relationship.

Putting claims into context

One of the most important roles we fulfill at the PLF or OAAP is helping you put a claim in context:

  • You are not alone.  The PLF receives approximately one claim for every nine lawyers it covers.  More than 80% of lawyers in practice 20 years or more have had a claim.
  • Having a strong reaction to an allegation of malpractice is very common.
  • There is never a downside to contacting the PLF or OAAP.  Our services are confidential and we are here to help.
  • The PLF has two claims attorneys on call every day to talk to Oregon lawyers. You should contact the PLF if you are served with a summons and/or complaint; you are concerned that you may have made a mistake; a client indicates that you have made a mistake; someone threatens you with a claim or makes a demand for damages against you; you receive a subpoena, or someone requests information, documentation, and/or testimony about your representation of a client.  Call the PLF even if you are concerned that the claim may not be covered.
  • At least one Attorney Counselor is on call daily at the OAAP office.  The OAAP is available to assist with any issue that affects the ability of a lawyer to function effectively.
  • The PLF has four practice management advisors on staff who are available to help you take action and constructively move forward with office system improvements.

All Rights Reserved [2015] Beverly Michaelis


How to Say No to Clients


Did you answer “yes” to one or more of these questions?  You are in good company.

Lawyers often feel pressured to practice “door law.”  The source of the pressure may be economic:  I don’t really have a choice.  I need the money.  It can also be emotional: Family, friends, or former clients are depending on me.

If you find yourself in this predicament frequently, here is some sage advice that first appeared in In Sight.  These tips apply no matter who is doing the asking: clients, friends, family, neighbors, teachers, etc.:

  • Be respectful.  Listen to the asker and don’t interrupt. Respect the request, then respect your right to decline the request.
  • Keep it simple.  You have the right to say “no.”  Elaborate justifications aren’t necessary [and may lead to backsliding, since many of us say “yes” to avoid feeling guilty].
  • Assign responsibility elsewhere:  “That sounds very nice; unfortunately, my
    calendar is booked solid.” Now it’s your calendar’s fault. Stand firm. Avoid engaging in discussion or negotiation.
  • Refer to others who might fill the opening well.
  • Say yes when there is a good reason to do so, it will benefit you, or the cause is one you believe in.  [Life is too short to take on a case or client you find repugnant.]

I encourage you to read the full article here.

Postscript – What would I add to the above?

It’s time to keep it 100, get real, and dish some tough love:

  1. You are not the only lawyer who can help your clients.  If money is an issue, there are others who participate in the OSB modest means program, offer sliding fee services, or take pro bono referrals.  If you continually give your time away to nonpaying clients, your practice will decline and you may need to close your doors.  If you close your practice, you aren’t available to help anyone.
  2. If the case can’t be won, are you doing a service or a disservice by taking it? Once a lawyer commits to a case, many clients assume the case CAN BE WON, no matter how you qualify your representation.  Not all clients have a legal remedy, for a variety of reasons. This can be a bitter pill to swallow, but the truth is better than false hope.  You can always suggest [and should suggest] a second opinion.
  3. Even when the client has the money and the case is decent, you are not always the right match.  Don’t let someone push you out of your comfort zone. Law is complex.  Staying on top of your desired practice areas is hard enough. Straying into unfamiliar areas is stressful, time consuming, expensive [because of the learning curve], and more likely to result in a claim or bar complaint.
  4. You are a lawyer, not a doctor.  Keeping clients who won’t follow your advice, don’t cooperate, and look to place blame anywhere but with themselves, is a pure misery.  This is not a situation you can cure, except by firing the client.

All Rights Reserved [2015] Beverly Michaelis


Crowdfunding Theft – New Liability For Entrepreneurs 

A Washington court ruling against a Kickstarter creator who didn’t produce exposes legal risks. Here’s what lawyers should know.

Reasons You Should Visit WSBA’s new Unbundled Legal Services Webpage

Whether you belong to the WSBA or not, I recommend you follow NW Sidebar – one of the best legal blogs out there. 

Here is a reblog of their recent post on unbundling.  For an Oregon perspective, see The Ethics of Unbundling and Unbundling Legal Services – The Latest Twist.

Here is the NW Sidebar post:

WSBA has a new Web page about unbundled legal services, and we have five great reasons why you should check it out.

Bankruptcy for the Non-Bankruptcy Lawyer

On October 14, presenters Christine Coers-Mitchell and Johnston Mitchell of Coers Mitchell Law LLC presented Bankruptcy for the Non-Bankruptcy Lawyer.  Topics included decoding “bankruptcy talk,” what to do if a bankruptcy filing occurs during litigation, how to settle a bankruptcy claim, how to handle divorce-related bankruptcy issues, strategies for creating “bankruptcy proof” agreements and transfers, and bankruptcy issues involving real property.

Below is a compilation of the best tips from this CLE via Storify 

Access Bankruptcy for the Non-Bankruptcy Lawyer here  or click on the image below:


[All Rights Reserved 2015 Beverly Michaelis]

Are You Losing Clients?

If your client retention rate is less than 90-95%, something is terribly wrong.

You might react by changing your fee agreement – aiming to “punish” the client who terminates your services after a substantial amount of work is done but prior to a recovery.

Unfortunately, this doesn’t solve the underlying problem.  If you fail to keep one in ten (or more than one in ten clients), it is time for some serious soul searching.

Hybrid Fee Agreements Don’t Solve Client Retention Problems

Don’t get me wrong, hybrid fee agreements have their place.  They are very effective in helping lawyers achieve cash flow during long months of toiling away on a contingent fee case.  They are also a creative way to address client push-back against the traditional hourly fee approach.

They are not effective in curing client retention woes.

What Does it Take to Keep Clients?

Improving client retention isn’t rocket science.  In fact, you can do it by following a simple acronym:  TREAT.

T – be Timely

R – Respond to client requests and concerns

E – show Empathy

A – demonstrate Assurance that client matters are being handled competently

T – deliver on the Tangibles.  Don’t send emails, invoices, or correspondence riddled with errors.

Read more about TREATing clients well here.

To simplify: show the same care and concern to your clients that you wish someone would show to you if you were in their shoes.

Remember that Poor Client Retention Can Lead to Bar Complaints and Malpractice Claims

If you need further motivation to kick your client retention up a notch, understand that how you treat clients is connected to everything in your law practice:

  • Client satisfaction and retention
  • Getting paid on time
  • Minimizing fee disputes
  • Future referrals
  • Avoiding bar complaints and legal malpractice claims

Go beyond TREATing clients well.  Do a thorough client relations check-up. This includes understanding the scope of the attorney-client relationship (when you can act and when you need the client’s informed consent) as well as managing client expectations.

Losing Clients on a Regular Basis Just Shouldn’t Happen

I am not currently in private practice, but in regard to client retention, nothing has really changed.

Back in the day, exactly one client terminated our firm.  This particular client read about a case in the news that she judged to be the same as hers.  She then fired us to free herself up to hire the lawyer who handled the case she read about.

In truth, we dodged a bullet when the client made this decision.  She would never have accepted (from us) that her case didn’t have the same value as the one she read about.

I can also share that in all the years I worked for a private law firm, we were on the other side of a client termination exactly once.

My point here is that my firm – and all firms we knew – simply didn’t lose clients.  And this is still true today for the majority of lawyers.  How do I know?

A large part of my job entails helping lawyers or families of lawyers close law practices.   I have been exposed to lawyers who were at the top of their game and lawyers who were not.  I also have a substantial amount of ongoing client contact due to these closures.

The truth is the lawyers need to do a lot wrong, and generally for some period of time, before clients jump ship.  Therefore, you don’t have to follow my client relations tips or suggestions for TREATing clients well 100% of the time.  No one is perfect.  But you should keep clients uppermost in your mind just about every waking moment that you are at work.

We All Know What to Do – Why Can’t We Do It?

None of this is really new.  So why is it so hard?  The number one reason: you are trying to juggle too many cases without the proper resources.  You are practicing beyond your expertise and not weeding out cases and clients; you are practicing within your scope, but your caseload is too high; you are unwilling to invest in staff, technology, or other solutions.

Making money isn’t easy.  As a result, many lawyers skimp.  They try to get by without hiring someone despite the fact they have more work than they can handle.  This trap is referred to as “penny wise and pound foolish.”  Next week I’ll write about how you can make money by spending money and hiring staff.

All Rights Reserved [2015] Beverly Michaelis



Avoiding Malpractice When Filing and Serving a Complaint

There are many potential pitfalls when it comes to filing and serving complaints.  Learn from the best by reading the top tweets cultivated on Storify from our
June 3 CLE, Avoiding Malpractice When Filing and Serving a Complaint.  Click on the image below or follow this link.


All Rights Reserved [2015] Beverly Michaelis

Your Engagement Letter is Not a “One Size Fits All” Bucket

What a Good Engagement Letter Can Do

Engagement letters are an essential tool in the lawyer’s toolkit.  Done correctly, they set the stage for the lawyer-client relationship, provide clarity, and minimize misunderstandings.

The best engagement letters follow a predictable formula:

  • A specific description of the legal problems the lawyer will handle
  • A specific description of the legal problems the lawyer will not handle
  • Steps the lawyer has taken already on the prospective client’s behalf
  • Steps the lawyer will take, once engaged
  • Steps the clients must take for engagement to commence
  • Future or ongoing client responsibilities

Combine Your Fee Agreement and Engagement Letter for Maximum Effect

Ideally, the terms of engagement are wrapped into the lawyer’s fee agreement.  This simplifies the process – the client need only review a single document to know what the lawyer will do, how much it will cost, and what the client’s responsibilities are.

Create Templates for Efficiency

Practitioners can streamline the engagement process fairly easily. While some terms will vary, most of these letters contain enough boilerplate for a lawyer to benefit from creating forms or templates.  [Rewriting an engagement letter/fee agreement for each client is a real time-waster.]

Don’t Fall Into the “One Size Fits All” Bucket

Some lawyers attempt to use their engagement letter as a one size fits all bucket.  For inspiration, they look to every case where a transaction or engagement went awry and proceed to add disclaimers to ward off future problems.  For example, lawyers who handle matters where property valuation is an issue may add language to the initial engagement letter forewarning the client of the need to obtain an appraisal.

How Could this be a Bad Thing?

  • Multiple disclaimers make for longer, more complicated engagement letters and fee agreements.
  • The longer and more complicated your letters are, the more likely the client will miss the key points:  what you are going to do (or not do) and what it will cost.
  • In the end, it could all be for naught if the goal is to avoid a potential legal malpractice claim….

Which Approach is More Effective?

Lawyer 1 incorporates a disclaimer into his engagement letter forewarning the client: if property value becomes an issue in this case it will be client’s responsibility to obtain an appraisal.  Without an appraisal, client assumes the risk of under (or over) valuing said property.  Lawyer 1 proceeds with representation, relying on the disclaimer in his initial engagement letter.

Lawyer 2 limits her engagement letter to the usual points discussed at the beginning of this post.  When the value of property becomes an issue in the case, lawyer informs the client of client’s responsibility to obtain an appraisal and the risks of failing to do so.

Keep it Contemporaneous

This is a no-brainer.  Disclaimers given at the beginning of representation don’t have the same value as disclaimers given contemporaneously.  Clients need context to make sense of your warning.  At the beginning of the case, there is no context.  Even if the client nods and understands, the disclaimer in your engagement letter will be long forgotten by the time the property issue arises.

Parting Thoughts

A well-written engagement letter and fee agreement is all about balance.  Include sufficient information about the scope of your work, division of responsibilities, and what your services will cost, but don’t fall into the trap of trying to disclaim or forewarn of everything that could ever go wrong.  If helpful, consider developing a client handout that addresses common issues or questions that arise.  Give specific disclaimers and warnings contemporaneously when the client can put the information into context.

[All Rights Reserved 2015 Beverly Michaelis]



Pro Se Adversaries – Tips for New Lawyers

Dealing with a pro se party raises a number of reasonable concerns:

  • The pro se could misconstrue what I say
  • The pro se may regard me as his or her lawyer
  • The pro se could sue me for legal malpractice

Communicate in Writing Whenever Possible

When you communicate verbally, a pro se can misremember your words, misconstrue your meaning, or even deny the discussion occurred.

When you communicate in writing your words are documented.  It becomes impossible to “misremember” or deny what you said.  Yes, written communication can still be misconstrued, but there is less likelihood of this happening.

Use a 3-Way Disclaimer

  • “I don’t represent you.”
  • “I can’t give you legal advice.”
  • “If you have questions, hire a lawyer.”

Every pro se communication should include this type of disclaimer.   If the pro se party later argues you had a lawyer-client relationship or attempts to assert a legal malpractice claim on the grounds that you failed to protect her interests, you will be in a better position to defend yourself.

Be a Broken Record

The 3-way disclaimer must be used every time you communicate with a pro se.  Does it become repetitive?  Perhaps, but that doesn’t matter.  Some pro se adversaries “get it” from the beginning; some “get it and forget it;” some never “get it.”  This doesn’t mean the pro se is purposely trying to make your life more difficult.  But it does underscore the value of redundancy.

Practice Tips Beyond Pro Se Communication

For more tips on how to work with pro se adversaries, peruse the following:

[All Rights Reserved 2015 Beverly Michaelis]

Ending the Attorney-Client Relationship

Calling all Oregon lawyers: are you taking advantage of your right to file a “notice of termination of relationship?”

ORS 9.380(2) was amended in 2011 to allow withdrawal by filing a simple notice, provided two conditions are met. First, the case must be concluded, meaning a final determination or judgment has been entered. Second, all services required of the lawyer under the fee agreement must be complete.

“The relationship of attorney and client may be terminated after the entry of a judgment or other final determination in an action or proceeding by the filing of a notice of termination of the relationship in the action or proceeding. The notice must be signed by the attorney and must state that all services required of the attorney under the agreement between the attorney and the client have been provided.”

The amendment eliminates the step of filing a formal motion with the court.

Why You Should File Notices of Termination

Take advantage of ORS 9.380(2) at the conclusion of your cases. File a notice of termination and remove yourself as attorney of record. This is especially important in practice areas where matters could reopen or require future steps.  Family law is notorious for post-judgment activity (contempt actions, modifications, and the like).  Criminal law practitioners may or may not be responsible for filing motions to dismiss when a one-year diversion agreement is completed.  If your agreed-upon services do not include filing the dismissal, withdraw. ORS 9.390 makes clear you are on the hook until the notice is filed:

“When an attorney is changed, or the relationship of attorney and client is terminated, as provided in ORS 9.380, written notice of the change or termination shall be given to the adverse party. Until the notice is given, the adverse party is bound to recognize the former attorney.”

Comply with the Rules of Professional Conduct

Satisfying ORS 9.380(2) isn’t the only step.  You must also comply with the Rules of Professional Conduct.  Oregon RPC 1.16(d) provides:

“Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers, personal property and money of the client to the extent permitted by other law.”

At the conclusion of a case, the timing issues may be less critical – assuming the client does not wish to purse an appeal – but the remainder of the rule must be followed.  To learn more about this topic, and how to properly disengage, see: How to Fire a Client.

[All Rights Reserved 2015 Beverly Michaelis]