No lawyer wants to receive an envelope from the Office of Disciplinary Counsel containing a complaint. Although the Office dismisses approximately 80% of the complaints it receives, the anguish associated with being accused of misconduct and the time lost gathering old file materials, preparing a written response and submitting to a sworn statement are bruises that remain even after a dismissal. What can you do to avoid the complaint in the first place? Well, you can start by following your mother’s good advice not to lie, cheat or steal. Unfortunately though, that’s just not enough in today’s more complicated regulatory environment. You need to do more, and that more is this.
Choose Your Clients Carefully
- If you will be the prospective client’s third lawyer, don’t become his fourth.
- If the prospective clients wants a loan at the outset, tell him that you’re a lawyer not a banker.
- Don’t represent friends and family. Really. What you’ll lose in friends and Thanksgiving guests that you want, you’ll gain in complainants that you don’t.
Set Reasonable Expectations Early
- Never undertake a representation without a signed engagement agreement. Never.
- Let your clients know how and when to contact you and how and when you will get back to them.
- Let your clients know that you have other cases.
- Let your clients know that you are not a pit bull. You are a lawyer.
- Be candid. Talk about the good, the bad and the ugly associated with your clients’ cases.
- Don’t neglect your cases. Do something. And that “something” that you do—document it in your file. See La. Rules of Prof’l Conduct Rule 1.3.
- Control your workload. You can do it all until you can’t.
- That attractive patent misuse antitrust case your neighbor wants you to take? Pass. You’ve never even heard of patent misuse. See id. Rule 1.1.
- Prepare. Meet with those witnesses. Hire that expert. See supra “Be Diligent.”
- Keep a good, organized file. That pile of papers with yellow sticky notes is not a file. It’s a mess.
- Better yet, go paperless. It’s not the future anymore.
- In a criminal case: don’t represent co-defendants; and, don’t communicate with your client’s family (even if they are paying you) unless you are specifically authorized by your client to do so. See id. Rule 1.7.
- In an insurance defense case, determine from the beginning who your client(s) is (are). Is it the insured or the insurance company or both? Once you make this determination, remember it and treat that person like he/it really is your client. See id.
- In a plaintiff’s personal injury case, be careful representing both the driver and a passenger unless you are sure that the driver is clearly, absolutely, positively not at fault. See id.
- In a domestic case, never try and represent the husband and the wife to “paper” the divorce, community partition or custody agreement. See id. Rule 1.7.
- In a succession, you don’t represent “the estate” or “the succession”—there is no such juridical person. Rather, you represent the administrator, executor or heir.
- In a business transaction, you don’t represent “the deal” or “the transaction”—you represent a person or persons. Figure out who.
- Return your client’s telephone calls, emails and letters. See id. Rule 1.4. The longer you wait, the angrier they will get. Angry people submit disciplinary complaints. Happy ones don’t.
- Do the same with calls, emails and letters from courts and opponents. They get angry too.
- Bury your client in paper. Send him everything.
- Confirm important conversations by email or letter.
Avoid Fee Disputes
- Money is the root of all evil. Misunderstandings about money are the root of many disciplinary complaints. Have a written and signed fee agreement that lays out in exhaustive detail how your fee will be computed. If it’s an hourly fee, explain that you charge for every email. If it’s a contingent fee, explain that you get paid first before expenses are deducted. If it’s a flat fee, explain that you get to keep it even if you manage to achieve a great result in just a few hours of time. While we understand these things, many (or most) lay people do not. See id. Rule 1.5.
- Make people happy about paying your bill. Believe it or not, it’s possible with a prompt-pay discount.
- Get an advanced deposit up front. Always. That payment is an emotional and symbolic investment in you. And it may be the only money you ever get. So get it.
- There is no such thing as a “nonrefundable retainer.” First, avoid using the sloppy word “retainer” unless you are really being paid just for your general availability to do the client’s work (you probably aren’t). Usually, what you call a “retainer” is either an advanced deposit or a minimum fee. See id. Rule 1.5. Second, as to the “nonrefundable” part of “nonrefundable retainer,” it’s really not. If you take the client’s money and don’t do substantially all of the promised work, you have to give all or some of it back. That is, you have to R-E-F-U-N-D it. So, it’s not nonrefundable. How’s that for some double negatives?
- Have your client agree in advance to arbitrate all fee disputes (and all other disputes for that matter). You want your disputes settled by one friendly lawyer—not by twelve angry laymen. And choose the LSBA Fee Arbitration Program. It’s inexpensive and efficient.
- If you and your client have a disagreement over what fee you’re owed, put the “reasonably” disputed amount in your trust account. Do this even if you have spent it. If necessary, pawn something and put that money in trust. See id. Rule 1.5(f)(5).
Careful with the Trust Account
- Your trust account is sacred territory. Get one. Put your clients’ money into it and nowhere else. Keep your own money out of it. See id. Rule 1.15.
- Don’t overdraw your trust account. Id.
- Reconcile your trust account at least monthly.
- Set up notifications for all withdrawals or transfers out of the account.
- Note that there is nothing glib or even marginally witty in this section. When it comes to the trust accounting, everything is damn serious. Seriously.
Obey the Law
- Comply with court orders and rules. See id. Rule 3.5; id. Rule 3.4(c). Contempt is not a river in Egypt. It’s contempt.
- Avoid sanctions. Fall-back position: promptly pay those sanctions.
- Don’t get into a fight in open court, in the hall of the courthouse or at the office Christmas party. See id. Rule 3.5(d).
- Don’t commit murder, aggravated assault, rape, battery, etc. You can find the rest of these “don’ts” conveniently listed in Louisiana Revised Statutes Title 14.
- Don’t get that first DWI, but really don’t get that second or third one.
- Don’t withhold that exculpatory document prosecutors. An eager, young, rebel-with-a-cause will find it during post-conviction and things will get ugly. See La. Rules of Prof’l Conduct Rule 3.8(d).
Terminate Your Representation Gracefully
- If you are terminated, hand over your client’s file. See id. Rule 1.16(d). Even though it doesn’t feel like it, that file belongs to your ex-client and not to you. And don’t try to hold the file hostage as ransom for anything. Give it up and walk away.
- Make a copy of your file before you hand it off. Unfortunately, this copy is on your nickel. See id.
Cooperate With ODC
- The letter from ODC is unpleasant, but you have to open it. See id. Rule 8.1(c). Nothing good comes from throwing it away. The only thing at the bottom of the trash basket is a “deemed admitted” proceeding, which is a technical way of saying “you lose.”
- Those things in the ODC lawyer’s hands? Most of the cards. This is an administrative matter, not a criminal trial. You have rights, but they become relevant only after you have given ODC most everything it wants.
- By “cooperation” I mean only “cooperation”—not pointless surrender. You have no obligation to turn yourself in if you have violated the rules. See id. Rule 8.3(a) (obligating a lawyer to report violation of “another” lawyer). Stop doing whatever it was you were doing. Now. And fix whatever it is you broke. But don’t dump gasoline on yourself—unless you are going to get caught anyway or some other good can come of it.