For the past 20 years, I have worked for an insurance company that insures lawyers for their malpractice. Trust me when I say I get it. There are going to be times when an insured doesn’t necessarily agree with every decision the company must make in trying to resolve his or her claim. That’s going to happen. What I don’t get is when an insured makes a decision to prevent us from helping at all.
There may be a time when a client wants to speak directly with the other side simply hoping to move the process forward. Truth be told, I’ve been there as a client. It felt as if my legal matter wasn’t progressing as fast as I thought it should and it seemed to me that the attorneys were the ones getting in the way. I started to wonder if I couldn’t move things along by just having a one on one with the other side. So, what does a good attorney do?
Solo attorneys sometimes land in an office share setting. And look, I get it. The reasons for doing so can be compelling. There’s the savings on overhead, the presence of others who can provide personal and professional support, and the list goes on. While I have no desire to quash anyone’s desire to work in such a setting, I do feel compelled to share a story; because sometimes it’s just too easy to minimize and even ignore potential problems.
While crowdfunding models vary, there are primarily two general approaches. One is an investment model where the contributor invests funds in exchange for some kind of benefit. The other model is the donation approach, where the donor has no expectation of a return or benefit, and this is the model I’m going to discuss.
Let’s start with a potential client who has no ability to cover your fees. Would it be ethically permissible to solicit donations through a crowdfunding source as a way to have your fees paid?
If you tell your clients that you will add a 20% surcharge to your fee for work you have to do on weekends, surely that must be reasonable. If it is, how about a 50% surcharge? Is that reasonable? How about a 200% surcharge? Read and learn.
A number of years ago, I took a call from a solo attorney who was nearing retirement. The retirement years were to have been his best years yet because his plaintiff practice had been quite successful. He was an esteemed member of the bar and had become something of a pillar in the community. His reputation of helping others and being of service to the community at large was above reproach, that is, until it all went horribly wrong.
Texting is ubiquitous in our culture, which makes it too easy to embrace that reality by texting day and night regardless of the setting just like everyone else does. The question I’d like to ask is this. Is doing so a good thing, particularly for a lawyer? Remember recent rule changes. Comment 8 to ABA Model Rule 1.1 Competency reminds lawyers that they are to “keep abreast of changes in the law and its practice to include the benefits and risks associated with relevant technology.” If you are communicating with clients via text messaging, have you thought about the ramifications of doing so?
No one enjoys hearing feedback about themselves that is critical in nature; but don’t get me wrong. Sometimes we need to hear that we’re not meeting the expectations of others because critical feedback shared respectfully can be a wonderful opportunity for personal and professional growth. That said, when a former client posts a review on something like an attorney rating site that is full of vitriol and outright lies, well that’s something else entirely. Now, the temptation to fight back and defend one’s self from the defamation is in play. The interesting question, however, is can you?
Malpractice claims alleging a conflict of interest have been a serious concern for insurers for years; and as a practicing attorney, you should be concerned as well. These claims can get expensive fast if for no other reason than they almost always boil down to greedy attorney put his or her financial interests above someone else. So not good, particularly if a jury has any say in the matter. So, what next?
Let’s review the basics. ABA Model Rule 1.2 (c) allows a lawyer to limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent. In those jurisdictions that have adopted similar language, many have added a requirement that informed consent be confirmed in writing. Now as a risk guy, I like that writing requirement regardless. There are just too many word and word disputes in the world of malpractice and discipline.
Speaking personally, I’m one who believes that the movement toward limited scope representation has been a good thing and long overdue. Speaking professionally, however, I need to share a caution. Find out what that caution is.