Category Archives: Malpractice Avoidance

The Year in Review – Useful Tips You May Have Missed

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Thank you readers!  I hope this has been a fruitful year for you.  Just in case you missed a tip or two, here is a list of 2012 blog posts for your perusal:

January

February

March

April

May

June

July

August

September

October

November

December

All Rights Reserved 2012 Beverly Michaelis

Your Ethical Obligation to Find a Missing Client

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What must you do if your client suddenly drops off the face of the earth?

In this month’s Oregon State Bar Bulletin, Deputy General Counsel Amber Hollister gives the following recommendations:

Search for the missing client using one of (or all) of the following approaches:

  • Mailing, e-mailing and telephoning a client at all known addresses and telephone numbers.
  • Utilizing web search services such as Google and social networking sites to locate additional contact information.
  • Researching public records such as property, tax, voter, marriage and court records and reviewing the client file for alternate contact information.
  • Visiting (or sending a staff member to visit) the client’s home or place of employment.
  • Contacting the client’s family members, co-workers, employer or medical providers.
  • Hiring a private investigator to search for the client, particularly where stakes are high or large sums of money are involved.

I would add:

  1. Look for red flags. Clients who move frequently, change jobs often, or have no friends or family in the community are more likely to fall out of touch.
  2. Always collect the names, addresses, telephone numbers, and e-mail addresses of at least two emergency contacts from every client. The Professional Liability Fund New Client Information Sheet provides a convenient way to do this. For a sample form, visit the PLF Web site > Practice Aids and Forms > File Management > New Client Information Sheet.  Get additional names and contact information if the situation warrants.
  3. Stress to clients the importance of keeping in touch with your office at all times. Some law offices add language to their fee agreement or engagement letters giving the responsible attorney the right to withdraw if the client fails to cooperate in the client’s case. This can include requiring the client to keep a current address and telephone number on file with the lawyer’s office at all times.
  4. If a client becomes unresponsive or difficult to reach, the situation is not likely to improve. Carefully document your efforts to communicate with the client and give strong consideration to withdrawing from representation when the problem first develops.
  5. Take extra precautions with impaired clients. One solution may be to learn the names and numbers of the other professionals with whom your client has regular contact.  (Case workers, social workers, psychologists, and physicians are examples.)  Get your client’s authorization to establish and maintain contact with these professionals.
  6. Recognize that certain practice areas such as criminal law involve clients who are more likely to move without notifying you.
  7. If you decide to withdraw from representation, read and comply with the  applicable disciplinary and court rules.
  8. If it’s too late and your client has already disappeared, conduct as thorough a search as possible. Take all the steps described above by Ms. Hollister, then working from the information on your intake sheet, call the client’s workplace and emergency contacts.  If you decide to visit your client’s last known address, consider talking to the neighbors. Run a DMV search or skip trace.  Follow this rule of thumb:  apply the same level of diligence in searching for your client as you would in locating and serving the opposing party in your case.

Accepting Settlement Offers

Can you accept a counteroffer for an amount less than your demand if you cannot reach your client?  Does it matter if the counteroffer is only open for a short time and you believe the amount is reasonable?  The answers are “no” and “no.”  Ms. Hollister explains:

RPC 1.2(a) provides that it must always be the client’s decision whether or not to settle a matter. Because the lawyer is the client’s agent, the lawyer cannot act without authority from the client. OSB Formal Op No 2005-33. Even if an attorney believes that a settlement offer is eminently reasonable, she is not allowed to supplant the decision of the client. Instead, the lawyer must diligently attempt to communicate the settlement offer to the client while it is still open. RPC 1.3; 1.4. If the lawyer is unable to communicate with the client, the lawyer must reply that she is without authority to accept the offer. Alternatively, the lawyer could seek additional time within which to respond to the offer.

(This answer assumes the client has not previously given the lawyer authority to settle her case for a lesser amount or within a specified range.)

Filing a Complaint to Beat the Statute of Limitations

In this instance, you are ethically permitted to file a complaint to preserve the client’s claim assuming you made “reasonably diligent efforts to contact the client and you have sufficient information to support the filing of a complaint. RPC 1.4; RPC 3.1.”  This is also the correct result from a malpractice avoidance standpoint.  You can then seek to withdraw, provided you ”…make a reasonably diligent effort to notify the missing client of the pending withdrawal, and take all reasonably practicable steps to protect the client’s interests. RPC 1.16(d).”  If you find yourself in this situation, contact the Professional Liability Fund and ask to speak to one of the on-call claims attorneys.

Informing Opposing Counsel

Should you tell opposing counsel you have lost contact with your client?  There is no easy answer.  You must balance your duty of confidentiality against the competing obligation to avoid materially misleading the other side.  “Similarly, the lawyer would likely have an obligation to reveal the fact a client is missing if the lawyer believes that opposing party is or may be relying on his previous incorrect assertions or assertions that are no longer true.”

If the fact that a client is missing is confidential information that cannot be disclosed, “the lawyer will need to seek to withdraw without disclosing the client’s status as missing, even if that will leave opposing counsel with a misunderstanding of the facts. RPC 1.16(a); see e.g. OSB Ethics Op No 2005-34 (an attorney whose client commits what the attorney knows to be perjury must ask the client to correct the perjury and, if the client refuses, seek leave of the court to withdraw without disclosing the client’s perjury).”

Stay tuned for Part II in next month’s Bar Counsel column.

All Rights Reserved 2012 Beverly Michaelis

The October issue of In Brief is Now Online

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The October issue of In Brief is now available on the Professional Liability Fund Web site.  Articles and announcements include:

ABA Techshow 2013

Adjusted Tort Liability Limits Against Public Bodies

Check Scams Become Even More Sophisticated and Generally Have No PLF Coverage

Data Breach Coverage Added to 2013 PLF Excess Coverage

Immigration Law Resources

In Brief Returns to Print

Modification to Civil Case Management System in Multnomah County

New Foreclosure Law Requirements and PLF Practice Aids

PLF Claims Attorney Position

Reporting Responsibilities Under Medicare

Tips, Traps, and Resources

Searching Online Court Calendars

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As Oregon eCourt continues to transform how we conduct business at the courthouse more services are available via the Web.  OJD Courts ePay allows parties to pay most traffic citations and many civil and criminal fees online.  Jurors, attorneys, and case participants can retrieve information about courts, including hours of operation and directions.  The best feature to come from eCourt transformation?  The ability to retrieve court dockets online.

Use the OJIN (Oregon Judicial Information Network) circuit court calendars to find calendar information for all  Oregon circuit courts except Yamhill Circuit Court and the appellate courts.
Some restrictions do apply:
  • You can only search for the first plaintiff and defendant on a case.
  • You  can only search for the first three attorneys on a case, with the system first looking for attorneys on the scheduled event and then for active attorneys on the case.
  • Search results will return the first 500 entries on the docket.
Search by party or attorney.  If desired, specify a date range.  Choose -All Courts- or select a specific court.
How you format your search matters.  OJIN advises:
The Party Name and Attorney fields are case-insensitive and can be all or part of a name. For example, entering “John” in the Party Name field will give results of all the cases with “John”, “Johnson”, and “Van Johnson.”  Names are stored in the same manner as in the OJIN system “Last First Middle” with no commas and one space between names. For example, Michael Jay Smith is actually stored as “Smith Michael Jay.”  Searching for “Michael Jay Smith” will not find any results; however, searching for “Smith Michael” or “Smith M” or “Smith Michael Jay” will include the desired results.
Use the Oregon  eCourt circuit court calendars to view calendar information for Yamhill County Circuit Court (and in the future, other circuit courts as the eCourt transition continues).  Select the drop-down menu to search by attorney, case, judicial officer, party or defendant name, and date range.  Case categories include criminal, civil, family, probate, and mental health.  (Check or uncheck as desired.)  A CAPTCHA code is required to ensure that a human being is entering the search request.
What you see on the screen will vary, depending on your search parameters.  If you elect to search by case, you must have a case number.  If searching by judicial officer, a drop-down appears permitting you to select a name off the list.
When searching by party or defendant, choose “name” for an individual or “business” for a business.  Checking the “Use Soundex” box will allow you to do a “sounds like” search on a last, first, middle, or business name:
When searching by attorney, use the name fields or enter a bar number:
Knowing how to search online court calendars can be a handy way to retrieve docket information in a pinch.  If you lose your calendar or suffer a computer meltdown, you can easily retrieve upcoming court dates on the Oregon Judicial Department Web site.

Unbundling Legal Services The Latest Twist

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In recent years I have blogged about the ethical dilemmas and potential malpractice exposure for lawyers who choose to unbundle legal services. As interested readers know, some states have “bona fide office rules” which prohibit or greatly limit operation of a virtual law practice.  While unbundling and virtual practice are not the same, they are connected and frequently co-exist.

This leads me to a significant change that occurred this summer when the Oregon State Bar overhauled its lawyer referral policies.

Prior to July 1, 2012, the OSB LRS policy was clear:  Absent a physical office, lawyers practicing “virtually” were not eligible to receive referrals. The inability of virtual practitioners participate in the LRS referral system stemmed from both practice and policy – LRS clients were told to expect an “in-office” consultation; LRS Policy E(3) provided:

“No duplicate registrations shall be made outside of the city where the attorney maintains his or her practice unless: a) the attorney maintains a second physical location where attorney-client meetings may take place; or b) the attorney’s office is located within two (2) miles of the border between two locations.”

In other words, Oregon had a “bona fide office rule” – at least in the sense that virtual practitioners could not use the OSB LRS as a source for clients.

Three months ago, this all changed.

When the bar revamped the Lawyer Referral Service, it eliminated the physical location requirement.  In fact, the bar now permits statewide and territorial registration regardless of the lawyer’s physical office location.  Additionally, lawyers have tremendous flexibility in controlling exactly where and how they receive referrals:

  • Lawyers who register statewide can opt out of “entire territories;”
  • Lawyers who register for specific territories can opt out of particular counties, cities, or towns “within the territories” for which they are registered;
  • Lawyers can limit territories for each area of law (practice bankruptcy statewide, but limit criminal law referrals to a specific location)

Quite a development!  Along with Washington’s Limited Practice Rule for Limited License Legal Technicians (LLLTs) effective September 1, 2012, I’d say we’re in for some interesting times ahead.

Copyright 2012 Beverly Michaelis

Learning the Ropes 2012

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Are you new to private practice? Then I have just the ticket for you!

Attend our three day conference – Learning the Ropes: A Practical Skills & Ethics Workshop – for a mere $65.  Attendance at the full program satisfies the MCLE requirements for new admittees’ first reporting period.

Choose from these concurrent sessions:

  • Creating a Firm (featuring yours truly) or Joining a Firm
  • Tort Litigation or Estate Planning, Guardianships, Conservatorships
  • Domestic Relations or Criminal Law
  • Civil Motion Practice or Bankruptcy

Can’t decide?  All tracks are recorded for later viewing at no charge.

Plenary sessions include:

  • How to Develop a Successful Practice and Avoid Legal Malpractice
  • Client Communication and Other Practice Management Survival Tips
  • The Ethics of Practice Management
  • Alternative Dispute Resolution
  • Recognizing Child Abuse and Fulfilling Your Duty to Report
  • Courtroom Do’s and Don’ts
  • Negotiation Tips, Tricks, Traps, and Tools
  • Bridging the Cultural Gap
  • Employment Law and Conscientious Communication (a new addition in 2012!)

Day 1 includes a “Meet the Judges” luncheon.  Day 2 features a networking luncheon with bar leaders and respected practitioners in the fields of Appeals, Criminal Law, Employment Law, Intellectual Property, Business Litigation, Debtor/Creditor Law, Estate Planning, Litigation, Business Transactions, Elder Law, Family Law, and Real Estate.

All meals, including the luncheons, are included in your $65 workshop fee.  The program is at the Oregon Convention Center October 31, November 1, and November 2, 2012.  Register here or visit the PLF Web site > Upcoming Seminars (under the heading Loss Prevention – CLE).  Sign up early.  Space is limited!

Copyright 2012 Beverly Michaelis

Resources for New Bankruptcy Practitioners

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Are you new to bankruptcy practice in Oregon?  Take advantage of these resources:

Copyright 2012 Beverly Michaelis

Can I Practice “On the Side?”

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Lawyers sometimes ask if they can start a law practice “on the side” while maintaining their current position.  This question raises several red flags.

Conflicts of Interest

Assuming your employer agrees to let you “moonlight” (and that’s a big assumption), you must address potential conflicts.  At first blush, you might think this concern applies only to lawyers who currently work in a law firm and wish to “work on the side” in a solo practice.  Not true!  If your other job is working as a real estate broker, mortgage broker, financial planner, psychologist, mediator, arbitrator, etc., you must also screen for conflicts.

In her article, Multidisciplinary practice: When Wearing Two Hats May Get You Burned  OSB General Counsel Helen Hierschbiel points out:

Recognizing and avoiding conflicts of interest is one of the more common concerns for lawyers who have side businesses, particularly when their clients do business with those other companies. Oregon RPC 1.7(a)(2) provides that a current conflict of interest exists if “there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer…” Thus, when there is a significant risk that a lawyer’s personal or other financial interests in a non-legal business will materially limit the lawyer’s responsibilities to a client, that lawyer has a conflict under RPC 1.7(a)(2).

In addition, when a lawyer’s side business is doing business with the lawyer’s client, consideration must be given to the limitations set forth in RPC 1.8(a), which provides more stringent requirements for obtaining client consent than those under RPC 1.7(b). RPC 1.8(a) provides:

A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:

1. The transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;

2. The client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and

3. The client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction.

Other Ethical Concerns

A “side practice” coupled with another job also raises potential concerns about advertising, solicitation, and fee sharing.  Here are Helen’s comments:

Advertising
“Oregon RPC 7.1 generally provides that any communication about a lawyer may not be false or misleading. Determining whether a statement is false may be simple, but assessing whether it is misleading can be more difficult. The cautious approach in making that assessment requires considering how the statement is likely to be interpreted by an unsophisticated consumer. Thus, OSB Formal Op 2005-108 concludes that a lawyer who has an active mediation practice may advertise the practice under “counselors — marriage, family, child and individual” sections of the yellow pages as long as the advertisement reflects the lawyer’s status as a lawyer offering mediation services.”

Solicitation
“Lawyers should also take care to observe the ban on in-person solicitation of legal business when providing non-legal services. The non-legal business may not be used to solicit clients with legal needs in a manner that violates RPC 7.3… (L)awyers would be wise to exercise extra caution when confronted in their non-legal business with an individual who has legal needs as well.”

Fee Sharing
“… (L)awyers should be mindful when setting up an ancillary business, not to allow non-lawyers any control or influence over their law practice.”

Employment Law and Liability Implications

Before you set up a side practice, check your employer’s policy and personnel manuals.  Some employers prohibit moonlighting altogether, others require preapproval of “outside employment activities.”  If you are a contract lawyer and a true independent contractor you should be completely free to have your own solo practice and perform contract work for other lawyers.  Be sure the principal lawyers who hire you agree.  Review the Practical Contract Lawyering CLE on the PLF Web site > Programs on CD/DVD for more information on setting up a contract practice.  Query:  If a lawyer commits malpractice in the course and scope of his or her ”side practice,” could the lawyer’s primary law firm employer be held vicariously liable?  (Food for thought…. as clients have attempted to hold firms responsible for the negligence of ”sole practitioners” who were leasing space in the firm’s office suite.)

Professional Liability Coverage

Lawyers engaged in the private practice of law in the State of Oregon are required to carry professional liability coverage through the Oregon State Bar Professional Liability Fund.  This requirement applies equally to full-time and part-time practitioners.  In other words, if you are a lawyer in private practice in Oregon (as defined in the PLF plan), it does not matter whether you provide legal services 50 hours per week or 10 hours per week – coverage is required in either case – and the cost of coverage does not vary based on the hours worked.  With that said, liability coverage in Oregon is complex.  Your best bet is to contact our coverage experts Jeff Crawford or Emilee Preble for more information.

Is it Worth it?

It may not be.  If you are not an active member of the Oregon State Bar, it will be necessary to pay bar dues.  If you intend to engage in the private practice of law and require professional liability coverage, the cost is $3500 per year (assuming coverage is not prorated and no discounts apply).  To assess whether a “side practice” makes sense, go through all the steps you would normally follow to set up a full-time law practice.  This includes forming an entity (or not), naming your business, choosing a space option, developing a business plan and budget, opening appropriate bank accounts, consulting with a CPA, creating (and implementing) a marketing plan, and establishing office systems.  If it sounds like your proposed “side practice” is getting more complicated by the minute, it is.  Don’t assume setting up a “side practice” is any less work than committing to the full-time private practice of law.

Now What?

Oregon lawyers are welcome to contact the practice management advisors at the PLF any time with questions about “side practice” or related issues.  If you are outside Oregon, follow this link to find a practice management advisor in your state.

Copyright 2012 Beverly Michaelis

Oregon Foreclosure Checklist Updated

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The Professional Liability Fund Trust Deed Foreclosure Checklist (August 2012) has been updated to incorporate specific requirements related to SB 1552.  Practitioners are encouraged to review the Foreclosure Mediation Requirements in tandem with the checklist.   Download the Trust Deed Foreclosure Checklist and Foreclosure Mediation Requirements on the PLF Web site > Practice Aids and Forms > Real Property.

Client Relations Dos and Don’ts

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The best defense against a legal malpractice claim is establishing and maintaining a good working relationship with your clients.  Follow these client relations dos and don’ts from the PLF:

DO treat your client with courtesy by:

  1. Keeping appointments promptly.
  2. Returning telephone calls, or having staff call to explain any delay.
  3. Completing work as promised, or letting the client know why if it cannot be done.  Do not force your client to repeatedly nag to get something done.
  4. Keeping the client informed of the progress of his or her case by sending copies of pleadings, correspondence, etc., as well as occasional status reports.

DON’T create unreasonable expectations.  Assess your client’s case realistically and present it to the client that way.

DO explain clearly, and confirm in writing, exactly what your legal services will consist of and exactly how the fee will be determined.  Carefully confirm in writing any legal matters you are not going to handle, and if the client or another professional is going to do a portion of the work.  Provide specific written details to avoid misunderstandings.

DO comply with ORPC 1.4, which states:  (a)  “A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.  (b)  A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”

DO use a written fee agreement and/or engagement letter for all client matters.

DO comply with Exclusion 8 of the PLF Coverage Plan relating to business transactions with clients. See the Disclosure Form ORPC 1: “Lawyer Engages in Business Transaction with Client” on the PLF Web site.  Select Practice Aids and Forms, then Conflicts of Interest. 

DON’T sue your client for a fee without first attempting to arbitrate the fee dispute through the Oregon State Bar Fee Arbitration Program.

DO confirm all advice in writing, particularly if the client chooses not to follow your advice.  Explain alternatives and their ramifications, and then let your client decide.

DON’T take any material action which may prejudice your client, settle a case, agree to judgment, or dismiss a party, etc., without the express consent of your client.

DON’T lose the human touch.  Treat all clients with empathy and practice good listening skills.  Often the most important client need you can meet is the need to be heard and understood. If you are struggling with a difficult client, contact the Oregon Attorney Assistance Program (OAAP) for confidential advice at (503) 226-1057 or (800) 321-6227.

DO take measures to produce a professional work product.  Work closely with staff to ensure that all documents, pleadings, correspondence, and client bills are accurate and error-free.

DO contact the PLF for advice if a claim or potential claim for malpractice develops.