Solo Practice University® » Mark Bassingthwaighte

4 ‘Musts’ When Considering A Co-Counsel Relationship

Mark Bassingthwaighte — Tue, 11 Jun 2013 12:30:52 +0000

Sometimes co-counsel relationships are formed “on the fly” meaning that there will be no thorough discussion as to who will be responsible for what. This can be disastrous if each attorney assumes the other will meet a critical deadline and as a result a deadline is actually missed. Unfortunately, this situation can get even messier if one of the attorneys is uninsured and heaven forbid the uninsured attorney happens to be the out-of-state attorney who asked you to serve as local counsel. This is just one example of what I have come to call “the mistake of assumed competency.”

Here is another. Local counsel had worked with an out-of-state firm on a number of cases over the years and the work done by the out-of-state firm was consistently high quality. As a result, local counsel became less and less vigilant in staying on top of each case and eventually got to the point where he was just signing documents or making an appearance with out-of-state counsel whenever necessary. Eventually one of these matters did end up going to trial and when the judge entered the courtroom he unexpectedly informed the out-of-state attorney that her documents were not in order and as a result she was not going to be able to try the case. The judge then turned to local counsel and said “you’re up.” Due to his total dependence on the efforts of the out-of-state firm, local counsel was completely unprepared to try the case. The case was tried, however, and it was apparent to everyone in the courtroom, including the client, just what had happened. The local attorney reported that this experience was the most horrific experience of his career and yet he was able to acknowledge that by his assuming that everything was in order he helped create that nightmare.

Perhaps there was a time when, out of professional courtesy, we could assume that our professional colleagues were competent; but those days are long gone. Consider the fact that 45% of all malpractice claims during the period of 2008-2011 were the result of a substantive legal error.* The old adage of “there is no such thing as a free lunch” would seem to be an appropriate metaphor. Assumptions about the competency of any attorney you are about to co-counsel with can lead to serious malpractice consequences.

Fortunately, there are a few practice pointers that can significantly reduce your exposure to claims arising out of co-counsel relationships if taken to heart. They are as follows.

1. When considering entering into a co-counsel relationship with an attorney about whom little is known, investigate the attorney before committing to the relationship. You might ask for recommendations or references, conduct a background check, interview the attorney, and/or contact area judges or attorneys who practice in the same field in order to ask about prospective co-counsel’s competency and reliability.

2. Have a formal written co-counsel agreement that documents the roles and responsibilities of each attorney. The agreement should address issues such as:

who will do what,
how will disagreements be resolved,
who gets paid what and when,
who will hold client funds,
who will bill the client,
how will expenses be paid,
who discusses expense decisions with the client,
how will monies be split if the client only partially pays, etc.

How the negotiation over the co-counsel agreement proceeds may help to determine whether the two of you can work well together. Consider also documenting your roles and responsibilities with the client if for no other reason than to avoid having assumptions in play and such documentation should always be present if one of you is going to have a very limited role in the matter.

3. Commit to tracking all critical deadline dates on all co-counsel matters regardless of your level of involvement and follow up with your co-counsel to either confirm you will meet your specific deadline or to make certain that your co-counsel will meet hers. This is particularly important on those matters where your involvement is going to be limited to nothing more than your serving as a local contact who will eventually receive some type of referral fee. Also remember that as co-counsel you are jointly responsible and liable for the matter being handled. There really isn’t any halfway with this. If co-counsel misses a deadline, you’ve got a problem. This is why attorneys who decide to exit a co-counsel relationship exit completely to include forfeiting any referral fee. Again, liability comes with the money.

4. Finally, make certain that your prospective co-counsel is adequately insured and do not accept his or hers verbal assurances. I have had attorneys tell me that they will say they are insured to get work when in fact they are practicing without any coverage. Financial pressures in competitive markets can result in certain attorneys being forced to take financial risks. This means you do need to get written proof that the co-counsel is adequately covered. A simple swap of a copy of everyone’s declaration page to their malpractice policy would suffice. If you find it hard to have this conversation, place the responsibility on your malpractice carrier. A request framed as “my malpractice carrier requires verification of your coverage” can work wonders.

Have you worked with or as co-counsel? What was your experience?

*Profile of Legal Malpractice Claims 2008-2011, ABA Standing Committee on Lawyer’s Professional Liability 2012

Written by Mark Bassingthwaighte

What Do You Do When You Get A Hit on A Conflict Search?

Mark Bassingthwaighte — Tue, 07 May 2013 12:00:40 +0000

(While this post is geared towards a firm of more than one attorney, there are some points every solo should take note of.)

What happens in your firm if there is a hit on a conflict search? Hopefully the conflict concern is immediately brought to the attention of the intake attorney. In firms that routinely and systematically check for conflicts, this does occur.

The interesting question however is this, is that action in and of itself sufficient?

I would suggest that it is not, at least some of the time and here’s why. An identified conflict will occasionally put the intake attorney in a precarious situation. Sometimes there will simply be no bright line rule upon which to draw when trying to decide whether it is permissible to move forward or not. Combine with this the possibility of a significant legal fee if the decision is made to move forward and the dilemma becomes clear.

When faced with a potentially serious conflict and couple that with a potentially significant legal fee, well let’s just acknowledge that reasonable minds may not always make the most responsible decision. Personal desires and financial pressures can sometimes cloud one’s thinking. Because of this reality, leaving all conflict resolution decisions entirely up to every intake attorney’s discretion can result in real exposure for the law firm. I actually have worked with firms that were surprised to learn that a significant conflict concern arose and the intake attorney moved forward on his own when he should not have and the fallout was not good. In those situations there was no accountability to the firm for conflict resolution. There ought to be, and fortunately, there is a better way.

If the conflict hit is such that it is not immediately apparent that the firm is conflicted out, the conflict concern should be brought to the attention not only of the intake attorney but the partner or departmental chair responsible for conflict resolution as well. The vast majority of conflict hits will result in a relatively quick sign-off as the intake attorney can readily explain why the name match is not going to be a concern. For those situations that are not clear, it is essential to have a non-involved attorney who is a trusted member of the firm act as the conflicts resolution attorney. Not only will the conflicts resolution attorney be able to counsel the intake attorney, she will also be able to make the ultimate conflict decision on behalf of the firm if that becomes necessary. Given this, the conflict resolution attorney should be a senior member of the firm who can rise above concerns over immediate cash flow and examine the proffered representation in light of what the ultimate benefit to or concerns for the firm may be.

In some instances, seeking the advice of ethics counsel may even be warranted. Some firms have an in-house ethics counsel which makes this rather easy. If your firm doesn’t or you’re a solo practitioner, you may need to seek outside advice. Consider placing a call to a law school ethics professor, bar counsel, a malpractice defense practitioner, a bar related or insurance carrier’s risk manager, or even another trusted colleague. In addition a review of the applicable rules of professional conduct and commentary will often provide further clarification.

Even after hearing the above, I will still occasionally have attorneys try to argue that the overall risk doesn’t justify such an effort. To them I would say this. Have you considered the exposure issues that may come into play in a conflict of interest malpractice claim? The end result of some conflict claims is that the firm must disgorge its fee because you cannot profit from a matter that you should never have been involved in in the first place. Oh, and remember this, malpractice insurance policies do not cover disgorgement of fees and, as we’ve been discussing, sometimes the fees in question are substantial. Ouch.

Even more troublesome is the issue of notice to a malpractice insurance carrier. Conflict of interest claims do not arise overnight. Attorneys are often aware of a potential problem when clients are troubled by how their matter is progressing. If one or more insurance reapplication periods pass during the time of client discontent or if coverage is placed with a different carrier in the interim, the insurance carrier may deny coverage. Why? From the carrier’s perspective, the firm was aware of an act, error or omission that could reasonably have been expected to be the basis of a claim or suit that was not reported in a timely fashion under the terms of the policy. Read your malpractice insurance policy carefully and pay particular attention to the notice requirements. Conflict claims do get denied for this very reason. When a firm was aware of a conflict and made the decision to put their financial interests above the interests of their clients and charged ahead anyway, well carriers (and juries) have little tolerance for this especially after learning about it a year or two later.

I strongly believe that the practice of law is a profession. But the running of a law practice is a business, and businesses need to have built-in accountability procedures. When you stop to think about it in this light, doesn’t the above approach just make good sense? I certainly think so.

Written by Mark Bassingthwaighte

So, You’re Thinking about Sharing Office Space

Mark Bassingthwaighte — Mon, 15 Apr 2013 11:59:55 +0000

Years ago I visited a small law firm that was part of an office share arrangement located in Chicago’s Loop. Now I understood that the cost of maintaining an office in the Loop would be prohibitively expensive for many solo and small firms so this was no surprise. What did take me off guard was the reception area. As soon as I walked in the first thing that I saw was a large reception desk staffed by six to eight receptionists and I quickly came to realize that far more than two or three distinct firms were operating out of this common space. It was then that I thought I might be about to engage in some vigorous debate and my guess was this would be a long day. Why? Well while I do appreciate the benefits that can come with office share arrangements, there are ethical, malpractice, and insurance coverage concerns that can easily arise in the context of an office share situation and given how the reception area was structured I suspected little thought had been given to those concerns by this group.

In order to set the stage, let’s talk about my response to walking into that reception area. I viewed the arrangement as misleading and thus a possible ethics violation in and of itself. There were no clear signs informing the public that the space housed a number of independent firms and anyone entering simply approached the first available receptionist. The result was that the common reception area suggested that all of the attorneys who practiced in that space practiced together as one firm when in fact they did not; and that’s a problem. For example, should one of the solo attorneys practicing there ever be sued for malpractice, other occupants may also be named in that suit given the public presentation of the group as a firm. Now here is where it gets interesting. Malpractice policies generally exclude coverage for any and all claims that arise out of or in connection with any act, error or omission committed by an attorney with whom an insured shares common office space and who is not an insured under the insured’s policy. So if your independent office suite mate gets sued for malpractice and you are named in that suit, had no involvement with or perhaps even awareness of the client who filed suit, don’t be surprised if your insurance carrier says “good luck with that” after putting your carrier on notice. Given this, the following tips are provided as a guide in order to assist you in avoiding this coverage problem and others like it.

Focus on clear indicia of separation. Signage should emphasize the existence of separate practices or firms and not simply be a list of attorney names. Establish and maintain separate phone numbers, letterhead, fax numbers, offices, business cards, file storage areas, support staff, and computer systems. Directory listings and other advertising should not contradict the indicia of separation. Thus running an ad referring to the group with something along the lines of “The Southern Illinois Law Center” might not be in your best interests. Try to look at your space through a client’s eyes. If a first-time client might view or experience the arrangement as a firm, you’re inviting trouble. Finally, include a statement in every firm’s engagement letter and fee agreement that explains there is no partnership relationship with the other attorneys or firms who also occupy the space.
Prioritize maintaining client confidences! There should be no talking in the halls, no common fax machine, and file cabinets (or office doors) should be locked when attorneys are away from their offices. Don’t leave client material in public places such as shared conference rooms. Close doors when visiting with clients or taking on the phone. Computers should be password protected. If there is a common staff person, this individual should not be involved in opening mail, taking detailed messages, receiving faxes, etc. because a common staff person should never be privy to sensitive client information as attorney/client privilege could easily be lost.
Don’t minimize conflict of interest issues. If the office sharing arrangement calls for a common employee or the indicia of separation are weak in nature, representation of adverse parties by separate practitioners in the space is ill advised and, in a number of jurisdictions, would be ethically prohibited. Regardless, if adverse parties will be represented by separate attorneys in the space, always obtain client consent in writing at the outset.
Don’t mislead the public. The use of common advertising to include terms such as “of counsel,” “an association of solo practitioners,” or “affiliated with” can be a significant misstep if the actual relationship does not support the use of these terms. For example, of counsel means more than being available for an occasional consultation or question. Of counsel is defined as having a close and continuing relationship which involves frequent and continuing contact. If this isn’t going to be the case, don’t use the term.
Put the office sharing agreement in writing. Issues worth considering include, what equipment will be shared and who will be responsible for its maintenance and repair? If there will be shared staff, who will hire and fire? How will work be prioritized for the staff, their salaries paid, and who will evaluate these shared employees? Plan for the inevitable attorney arrivals and departures. Who will decide who comes into the space and under what conditions? Will departing attorneys be responsible for finding someone to take their space? Detail all financial responsibilities and the consequences of a failure to meet those responsibilities. Most importantly, require that all office sharing attorneys maintain professional liability insurance in order to remain in the space each year.

In contrast to the situation mentioned at the beginning of this piece, I have also visited a number of office share situations where I have found all of the above ideas fully implemented. It really is possible to avail oneself of the benefits of an office sharing relationship, yet minimize the risks normally associated with these types of arrangements. The key is in striving to identify and avoid conflicts, in implementing strong policies and procedures that preserve client confidences, and most importantly in doing all that you can to maintain professional independence as viewed and experienced by any and all clients. That said, always remember that in spite of what you might say to a client, if you and your officemates conduct yourselves in a way that would lead a reasonable person to believe you are a firm, ethical and/or liability trouble may be just around the corner. This is a great example of where that old saying “If it walks like a duck, talks like a duck, then it’s a duck” rings true.

Written by Mark Bassingthwaighte

Image and Credibility – It’s Not About What Tech, It’s About How You Use It

Mark Bassingthwaighte — Tue, 12 Mar 2013 12:00:40 +0000

“The car defines the man.” I never really bought into that saying or others like it. I guess I’ve seen too many guys driving cars around that they thought made them look cool, but in truth made them look silly. Yes, this is a personal opinion, but I strongly suspect that my response to some of these guys over the years was more in line with what others thought than not.

Now you might be asking yourself, “what does all this have to do with attorneys?” Plenty. Consider what attorneys are doing or not doing with technology and the Internet. For starters, websites for any business is a given. If a business doesn’t have one, they’re off my radar because I haven’t looked up a number in the phone book or turned to the yellow pages for information in years. The first thing we do at our house when the new phone books come is put them in the recycle bin. Who needs the added clutter? Not me. If you think we’re unusual in this regard, ask around. I have, and trust me, we’re not alone.

I take this idea even further, however, as not having something of a dynamic web presence in this day and age says something. To me, it suggests that whoever is running whatever business I’m researching is someone who feels intimidated by technology. If that’s true, then maybe other concerns such as competency, meaning one’s ability to deliver whatever the service is, may also be a problem. In other words, if they can’t build a decent website, how in the world can they handle my complicated matter? I sometimes also start to wonder about their financial stability. Websites are dirt cheap, so why haven’t they made the investment in developing a strong web presence? Certainly these are assumptions on my part; but when people of all ages regularly post to blogs, have an extensive Facebook presence, text and even tweet all day long, I certainly am not going to waste my time checking out a business that hasn’t invested in developing something more than posting the equivalent of their yellow page ad on the web and calling that their website. I call that silly. There are too many other businesses out there that have positioned themselves to get on my radar anytime I wish to look and Google has made that downright instantaneous.

I do recognize a certain inconsistency here. In a way I appear to be saying that a car (having a dynamic web presence) does in fact define the man; but no, I am really starting this discussion by saying that to be in the game in today’s world, you need to have at least a basic mode of transportation. My true interest is in how far does this go; or in keeping with my analogy, how do you avoid looking silly or worse as you invest ever more heavily in technology and a web presence?

I just chuckled a few years back at how hot tweeting was at an ABA TechShow. I will admit that I’m something of a tech geek and think the latest and greatest gadget or online app is pretty cool. In fact I was pretty disappointed when the Surface Pro 128 gig tablet sold out within two or three hours post launch! This doesn’t mean, however, that I try to push to the front of the line and be the first to jump in every time a new gadget comes to market. The lawyer/risk manager side of me always kicks in and I start asking questions like “Just how reliable and secure is this device or application?” or “What might the fallout be if something goes wrong?” Hot things like the iPhone, Google Docs, and Dropbox have had to deal with security concerns due in no small part to their success in the marketplace. Twitter had a number of well publicized security breaches as they struggled to rapidly scale up in response to their tremendous success. Please understand that I am not trying to pick on any one company or product; this is about encouraging you to think through the implementation process.

It’s so easy to believe that using the latest and greatest means you’re now presenting a cutting edge image and have an advantage over all the competition. I equate it to driving a hot Porsche. This “Look at us, we’re better. We get tech,” image goes into the ditch, however, when a client confidence is lost due to a missing unlocked iPhone or your client identity is stolen due to poor computer security practices on your end. Let me share a story to underscore the point. Some time ago ALPS was hit with a large amount of spam that turned out to be coming from one of our insured’s servers. Our IT folks certainly let the firm know and shared a little advice with them on how they might remedy the situation. As one who was aware of what had happened, personally I would never take legal work to that firm. At the end of the day, they didn’t get tech and that leads me to naturally ask “what else don’t they get?” When there are so many other choices, I don’t have the time, interest, or need to seek that answer. I will move on and so would others.

The interplay between reputation, image, credibility, and technology is a complex one. While my initial reaction to seeing a good friend drive up in a hot car would be “very cool,” when the car is later driven into a snow bank because it was too much car for that friend, I would quietly chuckle (assuming no one was hurt!). You see, it’s not about the car, it’s about what one does with it. There will always be the next latest and greatest device or application. Look at them, every one of them, if you wish. Just be smart about what you decide to purchase and use. Think through the “what ifs” because our ethical rules are going to be in play. If a confidence is lost, if information is corrupted or stolen due to poor implementation, it is going to be your creditability, reputation, and yes even your license that may be at stake. Remember that it can take years to build a good reputation and garner deep trust. All this can be lost in seconds given the right misstep. Twitter has its place, but it’s not for everyone. Regardless of the technology under consideration, the question you should be asking is, “does the technology have a proper place for you?” It’s ok to say no and wait to see how things shake out for the early adopters. You can always jump in later. In the long run, first isn’t always best because sometimes the car turns out to be more than you could handle.

Written by Mark Bassingthwaighte

Unsecured ‘Free’ Wi-Fi? Be Worried. Be Very Worried.

Mark Bassingthwaighte — Tue, 19 Feb 2013 13:00:10 +0000

I like convenience as much as the next guy but I also exercise caution whenever I see the word “free.” Why? Because the old adage “With free you get what you pay for” does mean that sometimes you end up with nothing at all….or more than you bargained for. I become particularly concerned whenever I see the words “free” and “Internet” together and you should too.

In this day and age, unsecured Wi-Fi networks are practically ubiquitous. You will find them in airports, hotels, office buildings, coffee shops, restaurants, malls, and even municipalities. While this is convenient when you want to buy a new book on your e-reader, check your e-mail on your laptop, or rebook a flight on your tablet, doing so in the unsecured Wi-Fi environment can create a real problem days, weeks, or even months later. Consider the following. In 2010 a free Firefox browser add-in named Firesheep was released that enabled the user of Firesheep to hijack the social media accounts of anyone else who happened to be using the same unsecured network that the Firesheep user was on. Facebook, Google, Twitter, Windows Live, and Yahoo are just a sampling of the sites Firesheep targeted. While this type of attack was not new, it was now far easier for anyone to become a hacker. In short, hacking was now a readily available opportunity for the masses and things haven’t gotten any better since.

Here is the bottom line. Unsecured Wi-Fi is insecure and, if for no other reason than the inconveniences that come from securing them, these networks will remain unsecured. That’s just the way it is. Given this, the first take away is that one should never connect to an unknown network particularly if the connection is free and remember that just because a connection claims to be Hilton’s, Jet Blue’s, or Starbucks’, doesn’t mean that it is. In situations where you are unsure, assume that if the connection is free there is a reason and it may not be worth the risk. I know that some will say that the Starbucks signal is free, they’ve used it many times and they never had a problem. In response, remember hacking is now available to the masses. This isn’t just about who made the signal available, it’s also about not knowing who else may be using that same free signal.

Unfortunately, you will still find that there are an over abundance of legitimate networks out there that are also unsecured, to include those found in hotels, airports, coffee shops and even some law offices, which brings us to a second take away. Only use an unsecured Wi-Fi network if you have the ability to secure the connection yourself by using a VPN connection, which basically means your data stream is going to be encrypted. VPN stands for virtual private network and allows you to create a secure tunnel between your remote computer and the home office. There are a number of ways to do this (e.g. LogMeIn, OpenVPN, and Cisco VPN) so my best advice would be to discuss the options with your IT staff or consultant who should be able to recommend an appropriate solution for your specific situation.

I wish that I could stop here but, I can’t. With the rapid proliferation of smart phones and tablet computers coupled with the shift to tiered data pricing, additional avenues of exposure arise as users can and will use these devices to connect to the Internet via a wireless signal. Just be aware that there are software solutions available that provide mobile security on such devices thus protecting them from viruses and malware. Also, there are other software solutions that allow the user to connect to the home office via a secure VPN connection. Again, talk with your IT staff or consultant and heed their advice. In light of the risks associated with unsecured Wi-Fi, a little convenience simply isn’t worth it because in the end you get what you pay for in terms of security and that would be nothing.

Written by Mark Bassingthwaighte

I Work Like This, Because?

Mark Bassingthwaighte — Tue, 05 Feb 2013 13:00:51 +0000

While out on a walk recently, I briefly overheard part of a conversation about weddings. What caught my attention was this comment: “Why do people spend so much time and money on their wedding and so little on their marriage?” That question struck a chord with me.

Now, I’m not one to say don’t celebrate life’s big events; but if your focus is such that it will only shine on the big events and never on the day-to-day, there’s a problem and at the end of the road you may find yourself alone.

I’m a road warrior and I understand having to miss the band concerts, the cross country races, and the social functions with friends all in the name of earning a living and helping to pay the bills. I’ve also worked with too many solo attorneys who manage to fit in a long weekend every couple of years which they often refer to as “the family vacation.” Couple this with how so many in Big Law define part-time lawyers as those who work a 40-hour workweek and hopefully you begin to see my point. Kids don’t stay young forever, spouses don’t want to wait until retirement to enjoy a life together, and friends won’t keep asking if the answer is always “I can’t tonight.”

With all this in mind, I would like to share a few thoughts that might help restore a little balance in life. Let’s remove some of the stress on the work side of the equation and perhaps find a little time to nourish the personal side. Then take that time and spend it well. Here are a few ideas.

Do all that you can to determine if a client can actually afford your services before agreeing to accept their matter. If this is a hard conversation to have, learn how now. Also, stop acting like a bank. Shift the collections burden by accepting credit card payments or perhaps taking retainers. Finally, if an account becomes delinquent and there is no reasonable way for the client to eventually make good, get out if able or simply acknowledge that this one is going to be pro bono. Staying in denial wastes too much energy. You might also look for any learning so that you don’t find yourself handling a similar forced pro bono matter next quarter.

Start the day by doing the one thing that you’ve been putting off. It might be returning a call to an unhappy client, having to pass along bad news, finally starting to write that brief, or making one of those marketing calls so many struggle with. We all tend to put off tasks that we view as distasteful. Stop it. The energy wasted in procrastinating and the toll of carrying the burden hour after hour or day after day isn’t worth it. Whatever it is, get it out of the way first thing and the day will be more productive.

Set boundaries and stick to them. Who says all calls must be returned within two hours or that email must be replied to immediately. We all work differently. If morning is a productive time for you, make it productive. Let clients know in advance that you will not take calls, receive walk-ins, or read and respond to email between the hours of 8 and 10 and have staff enforce that policy. Short of an important call from a judge or a true client emergency, this becomes your productive time. Calls will be returned and email responded to after. Interruptions wreak havoc because it takes time to get back into the swing. That’s time wasted and it can quickly add up to serious lost time. Learn to control and manage interruptions by setting boundaries. In this same vein, delegate what can be delegated. For those who struggle with this, trust your judgment in who you hired. It will be ok. If that’s hard, periodically review their work as a way to reassure yourself and then start the process of letting go.

Smart phones and tablets are wonderful tools that enable all kinds of efficiencies. That said, just because it’s possible to take a call while hiking in Yellowstone or respond to email while poolside in Cabo doesn’t mean it’s a good idea. Personal time is just that, personal time. Keep it that way. My kids knew not to respond to a text while at the dinner table and my wife, rightly so, expects that I will refrain from checking work email whenever we’ve set aside couple time. No iPad, no Droid. It’s about learning to prioritize personal time in order to stay sharp. If you never get away, even if it’s just a short walk over the noon hour to get some fresh air, the “always available” lifestyle will catch up with you. Batteries die, engines break down, and hearts stop. I have literally seen guys go down with a heart attack. Trust me, not good. We all need to rest and relax in order to recharge and stay healthy.

Finally, focus on the day-to-day. On those 14-hour workdays on the road, I still find time to text the kids, call my wife, and when I can, enjoy a glass of red wine with dinner. It forces me to slow down and refocus. When I am home, I leave work at work and get into the kitchen as much as I can. The whole family loves it when I do, but more importantly, that’s my time. Life’s milestones are wonderful times to celebrate; but if you’re missing too much of the day-to-day stuff you may come to find that no one is there to celebrate with you, or worse yet, that you’re the one missing.

Written by Mark Bassingthwaighte

Don’t Run with Assumptions about the Attorney/Client Relationship

Mark Bassingthwaighte — Tue, 15 Jan 2013 13:00:18 +0000

Starting this month we now have two new columnists at SPU, Mark Bassingthwaighte, who is an attorney and a risk management advisor at ALPS,and Wendy Inge, also of ALPS. They will both talk candidly about managing your risk from the obvious to the completely unexpected. There will be something for everyone. They’ll both be available to answer your questions in the comments and certainly take advantage of it!

We all know what they say about running with assumptions. Truly, trouble can so easily follow when we do; and in the practice of law, the eventual outcome can be quite serious. From a risk perspective, role clarification and file documentation are two of the obvious preventative measures. The trick is in trying to identify all the times when an assumption might be in play so that appropriate steps can be taken. My best advice in this regard is to suggest that you try to place yourself in your client’s shoes and consider what they might be thinking about a conversation or how they might be responding to a given set of circumstances. Simply stated, come at it from the other side of the attorney/client relationship.

For example, one can appreciate what a personal injury plaintiff attorney’s intention might be with a contingency fee agreement scope statement of “I am agreeing to handle any legal issue that arises out of the accident of such and such a date.” It’s a statement intended to keep the door of opportunity open. Unfortunately, it’s the client’s interpretation of or response to the scope statement that will matter. Some clients might now expect that the attorney has also agreed to handle a related traffic citation, an eventual divorce action, or a wrongful termination claim any of which had some tie to the accident. Life can be messy. Clarify your scope of representation before you get caught up in a client’s mess. Define in writing what you are agreeing to take on and, particularly with any kind of limited scope representation, consider also documenting what you are not agreeing to take on.

Now think about the following situations. Adult children schedule an estate planning appointment for their parents after first meeting with you. At a real estate closing the purchasers asks you, the lender retained attorney, a legal question. A non-client calls your firm for a quick bit of advice or a family friend asks for your thoughts at a social function. A corporate client asks that an opinion letter be drafted for sophisticated investors. One of the corporate officers of a firm client asks for legal advice from you, a firm attorney/corporate board member. Or perhaps the adverse party in a matter you are involved in is preceding pro se. At ALPS we have dealt with claims that have arisen out of all of these situations and many more just like them. With each you would know what you believe your role to be; but remember that actions speak louder than words. The important question is whether the individual or individuals that you would be interacting with are seeing it similarly.

Documentation of your role is critically important in all the above situations and this should almost always be done in writing. Come at it by taking a moment to ask yourself just who is my client? That question can help you clarify your role. Just as important to this documentation piece is your ability to remain consistent in your actions over time. In other words, and in spite of documentation to the contrary, your subsequent actions can unintentionally create an attorney/client relationship with a related party and that can be a real problem. For instance, if you state and document that you represent an entity yet through your actions and advice begin to allow a corporate constituent to conclude you also represent her, that may very well end up being the case and now you’ve got a conflict problem.

Sometimes a lawyer will share that they viewed the matter as something other than legal work. They will say “This was just a favor for a friend. I was going to look into it when I could.” I love that one. Here, the lawyer saw the request for help as a favor and nothing more. This is another assumption because from the friend’s perspective their legal matter was now in the competent hands of their attorney/friend and they expected nothing less than an excellent outcome. Should you ever find yourself in a similar situation, remember that you have agreed to place yourself in the role of attorney. View this as real legal work and follow-up in a timely and responsible fashion. Trust me, friends, family members, and even staff will sue if their matter is forgotten about or handled negligently; and the fact that no fee was involved is irrelevant. The standard of care isn’t any less just because you agree to provide your services for free or view this as a favor.

Assumptions come into play more often than I think many of us realize and they can lead to serious problems if never questioned and left unaddressed. If any of you have a story to share or a lesson learned after you ran with an assumption, please share so that the rest of us may benefit from your insight and hopefully avoid making a similar mistake. If you are hesitant to do so, think about this. To assume that you have nothing to add is…. well you know the rest.

Written by Mark Bassingthwaighte