Professional liability policies for lawyers and law firms often distinguish between disciplinary and malpractice defense. Some don’t cover disciplinary defense or, if they do, include a much lower coverage limit. A recent decision from the U.S. District Court for the Western District of Washington underscored the practical impact of the distinction between disciplinary and malpractice coverage.
Chochrane v. American Guarantee & Liability InsuranceCompany, 2020 WL 3798928 (W.D. Wash. July 7, 2020) (unpublished), was a coverage action by a lawyer against her carrier. The lawyer’s professional liability policy included coverage for disciplinary matters—but the limit was only $10,000. A grievance had been filed against the lawyer. No separate litigation for malpractice, however, was involved. Although the disciplinary matter was eventually dismissed, the lawyer incurred substantially more than the $10,000 limit in fees and costs in her defense. Because a part of the grievance included allegations of malpractice, the lawyer argued that her carrier should cover the expenses above the $10,000 limit. The carrier declined and the lawyer brought a coverage case against the carrier.
… [I]t is CAO staff’s continued impression that there is a significant failure on the part of many Oregon lawyers to adequately communicate with their clients. This information has again been provided to the bar’s CLE department anticipating that future CLE programs should be developed focusing on communication with clients and keeping clients satisfied. CAO staff also meets with local bar leaders to discuss this issue and educate bar members on this topic. Annual Report, Oregon State Bar Client Assistance Office
No one can beat a faster path to the bar discipline office than a client who feels mistreated or ignored.
Don’t become a discipline statistic. Make good client communication a habit by integrating it into your regular workflow:
Initial Client Intake
Your first meeting with the client sets the tone for the entire attorney-client relationship. Take advantage of this golden opportunity!
Clarify your fees, get a clear commitment from the client, and follow-up with a written fee agreement.
Create realistic expectations. What does the client hope to accomplish? What options are available to the client? Pros? Cons? Timeline involved?
Transmit almost everything you do or receive to your client. Keep it simple by stamping client copies, “For Your Information Only – No Response Required.” If you are paperless, create a fillable transmittal form, use e-mail, or post the document online via a secure client portal.
Follow up most office and telephone conferences with a letter or e-mail.
Return telephone calls and respond to e-mails. If you have difficulty doing so on a timely basis, block out time on your calendar every day for these activities.
Let clients make the decisions. Obtain express permission for:
Granting extensions of time to the adverse party
Stipulating to evidence or testimony
Suggesting settlement figures to the other side
Rejecting settlement offers
Agreeing to continuances
Concluding testimony in litigation matters
Review client files at 30 day intervals based on the anniversary date of opening the file. If you open a matter for Smith on June 20, schedule a reminder to review the Smith file on the twentiethday of every month: July 20, August 20, and so on. If you open a matter for Jones on July 1, schedule a reminder to review the Jones file on the firstday of every month: August 1, September 1, and so on. Practice management programs make this process a breeze, but it can also be done in any calendaring program by setting a recurring event or task. If you need assistance creating a system to remind you to pull client files, give me a call.
Send monthly status reports. Some clients want to hear from their lawyer, even if no action is necessary. Instead of writing a custom letter or e-mail, simplify the process with easy-to-complete Client Status Reports. The status report should be sent in conjunction with your monthly file review.
Get bills out the door! With rare exception, most fee agreements are crafted around the concept of clients receiving a monthly invoice. Seems like a no-brainer, but a surprising number of attorneys have difficulty sticking to a regular billing schedule. For assistance with effective billing systems, contact your friendly practice management advisor. If you haven’t invested in time and billing/accounting software, there is no time like the present.
When your work is done, don’t shove the client file in a box and forget about it. Take the time to send a proper disengagement letter. Return original client documents, render a final bill, and explain any remaining duties and obligations you or the client may have. Be sure the client understands how long you will keep your file, and consider asking your client’s opinion of the service received.
To make this process easier, use a file closing checklist every time you close a file. Sample disengagement letters and a sample file closing checklist are available on the Professional Liability Fund Web site. Select Practice Aids and Forms > Disengagement Letters or Practice Aids and Forms > File Management for the file closing checklist.
Poor client communications beget unhappy, irritated, frustrated clients who file bar complaints and legal malpractice claims. By changing your habits and incorporating tools like client intake forms, standard fee agreements, nonengagement letters, transmittal forms, client status reports, and file closing checklists you can improve client relations exponentially with a minimum of effort.
The Oregon State Bar wants your input on draft proposals for the 2011 Legislative Session. A forum will be held on Tuesday, April 13 at the Oregon State Bar Center. The purpose of the forum is to increase awareness and allow members an opportunity to comment. Members may also contact the Public Affairs Committee or bar staff.
Some of the proposals caught my eye:
IOLTA Sanction Bill – This bill would change the sanction for failure to file a notice of annual IOLTA compliance from a disciplinary violation to an administrative one.
LPRC Restructuring – Eliminates LPRCs (local professional responsibility committees); permits bar to appoint individual lawyers to serve as investigators.