Sometimes I need to stop and remind myself of the importance of making healthy food choices because it is far too easy to head through a drive through while on the road. A better choice might be to stop for a more balanced meal. The point of this is to suggest that perceived time demands and busy schedules can enable many of us to rationalize. We too readily allow ourselves to say that this or that time saving shortcut is warranted. If we fail to periodically remind ourselves of the importance of follow through, these shortcuts will eventually become engrained bad habits that can lead to serious trouble. While all of these tips have been written about in one form or another over the years, there is value in bringing them together as a simple reminder of the importance of each. With this in mind, try not to do any of the following.
1) Fail to document scope - particularly with established clients. Scope of representation should be documented in every discrete file for which an attorney is responsible. This does not mean that a formal contract is called for every time a long-term client brings a new matter to the firm. Scope of representation can be documented in a “Thanks for stopping by” letter, a confirming email, or a letter of clarification. Don’t allow assumptions to come into play. You may feel that you have been retained to handle a certain task while the client is certain that instructions regarding an additional task were passed along. In a word against word dispute, the attorney is on the defensive absent documentation.
2) Fail to keep the client informed. Remember that you are in your client’s employ and the matters or cases that you are handling are their matters or cases, not yours. So, promptly return phones calls, timely respond to client requests for information, forward copies of documents, and provide regular detailed bills. Also keep clients informed of all court dates, all filings, and all offers to settle or mediate. Clients should be told what the scope of representation is and also what it isn’t; they should be informed of their rights, especially in criminal matters; the ramifications of any actual or potential conflict issue should be fully explained to the client/s prior to their agreeing to representation; client permission should be obtained for granting extensions of time to adverse parties, stipulating to evidence or testimony, agreeing to continuances, making and/or rejecting settlement offers, and the like. Clients expect to be told when their matter has concluded and what, if anything, they must yet do. Whether through inability or oversight, clients must also be informed of a failure to take action on the client’s matter or that their case has been dismissed. This is the level of contact and kind of information that clients reasonably expect from their attorney.
3) Fail to do today what can be put off until tomorrow. The reasons behind procrastination are many. An attorney may assume that someone else is taking care of the matter, may not have a complete understanding as to how to handle a matter, or simply has too many matters open. Being afraid of imparting bad news, not wanting to deal with a “problem client,” or hoping that with enough time the problem will go away are other reasons why attorneys procrastinate. Sometimes the problem is an inability to organize work and a matter has been overlooked. Sometimes there is an inability to appropriately prioritize work and there is a failure to appreciate the importance of completing the work in a timely fashion. At other times, procrastination arises for reasons that are more personal. An attorney may be depressed or burned out and unable to find the energy to finish a matter or the attorney may be impaired and not thinking clearly. Regardless of what might be driving any procrastination, learn to recognize it for what it is and address the problem. Sooner or later procrastination will lead to problems such as losing a good client, missing a critical deadline, or having a disciplinary complaint filed against you.
4) Fail to do your homework. In other words, don’t dabble. There is no such thing as a simple will, simple contract or a cut-and-dried personal injury case. If you are not prepared to handle the difficult cases in a given area of practice, do not accept the seemingly simple things as often you will fail to see where the problems are. Why? Because we don’t always know just what it is that we don’t know and the failure to keep this in mind will lead to trouble. Yes, you can develop the expertise given sufficient time, but keep in mind that sufficient time will often be far more than meets the eye at first glance and the client usually will not be willing to pay for your education.
5) Fail to confirm that a file is now closed. It is always a good idea to document that the representation has ended and inform the client that the file is about to be closed, or that a file relative to a particular matter for an on-going client will be closed. A letter of closure sent at the conclusion of representation can meet this need quite effectively. This letter can serve several purposes beyond documenting that the attorney and client understand and agree that representation has ended. The letter provides the opportunity to inform the client about any continuing responsibilities that flow from the matter. For example, if you form a new corporation for a client, you should use the closure letter to clarify who will be responsible for maintaining the corporate records and accomplishing the annual filings necessary to maintain the corporate existence. Similarly, you should remind estate-planning clients that they should review their plans with you, or another attorney, every three to five years to make sure no significant change has occurred in their personal circumstances and/or the applicable estate tax laws. This is particularly important for the one-time client with whom you may lose contact.
The letter of closure may also help sort out potential future conflict of interest problems. The documentation of the termination of the attorney/client relationship for a former client may allow you to move forward with representing another client in opposition to the former client in an unrelated matter. Permanently retain copies of all closure letters in a closure letter file for this very reason.
6) Fail to maintain some minimal level of attorney oversight of client property. An attorney should review all client trust fund account reconciliations at the end of each month. This will help catch any inadvertent errors that are made in payments and assure that all funds on deposit for each client can be regularly accounted for. Many firms will require that the bank statement be delivered to the reviewing attorney unopened. This attorney will look for forged checks and make certain that there is a check for each debit entered on the statement prior to forwarding these materials to the individual responsible for reconciling the account. Once the reconciliation is complete, the reviewing attorney should receive a copy of the reconciliation report along with the original bank statement to review the numbers. A firm might designate one partner (or this duty could be rotated) to handle these tasks. Virtually every state bar has promulgated rules indicating that every attorney in a firm has the responsibility for making sure the trust or escrow account is in proper order. Reliance on a bookkeeper or CPA does not nullify the attorneys’ responsibilities.
7) Fail to appropriately supervise staff. By way of example, consider a busy real estate practice where the attorney has assigned to only one staff member the following: title search responsibilities, preparation of the settlement packages, and other administrative tasks. Consider also that this one staff member already is managing an excessive file load. Under these circumstances, it is not hard to imagine a mistake, such as listing and paying the wrong party as mortgagee. This kind of mistake can happen because the attorney is working under erroneous assumptions. The attorney may be assuming that the staff member can handle a heavy caseload and is properly trained when, in fact, the employee can’t handle the load or isn’t properly trained.
Attorneys must supervise their employees, and that means ensuring that all staff have the necessary tools and training, as well as an appropriate environment, for the performance of their duties. Remember that Rule 5.3 of the Rules of Professional Conduct makes attorneys responsible for ensuring that all staff are competent. If a staff person makes a mistake, you will be the one responsible for the fallout.
8) Fail to plan for the unexpected. Perhaps the most significant concern is proper calendaring practices as the unexpected can and does happen, be it a fire that burns down the building, a weather event that results in the court house closing early, or even a computer crash. Calendaring errors remain the leading cause of malpractice claims. Common mistakes include data entry errors, failing to use file review dates, absence of a backup calendar and procrastinating until the last minute to file documents. To avoid this trap, an office must have at its organizational core an office-wide calendar and practices in place regarding its use. The system should contain the following characteristics:
¨ Be easy to use, maintain, and teach to new personnel
¨ Include some redundancy, either through multiple paper or computer calendars
¨ Provide for an off-site calendar backup in the event of a fire or other disaster
¨ Have the capacity to crosscheck between a master calendar and the backup calendar to catch calendaring errors which will occur from time to time
¨ Have at least one reminder date for every open file to ensure that all files are reviewed on a regular basis
¨ Include tracking procedures that enable the firm to identify who made any given entry
¨ Make all attorney and non-attorney staff accountable
Develop a standardized calendaring policy that sets forth all types of items to be calendared, the expected frequency and timing of reminder dates, the applicable deadlines for the various types of cases the firm handles and the firm's own deadlines for events it considers critical. For example, a firm might require all lawsuits to be filed no later than three months prior to the running of the statute of limitations.
9) Fail to properly manage billing and collections. Fee disputes are at the heart of a significant percentage of all legal malpractice claims brought against attorneys each year. Typically, the attorney sues his client for unpaid fees and is then countersued for legal malpractice. In some cases, merely mailing a final bill triggers threats of legal malpractice. In order to avoid fee disputes, use the following rules in billing and collecting fees for legal services:
¨ Don’t accept clients who cannot afford your legal services. It is a lose/lose situation to take on a client who is overly concerned about fees and/or who ultimately will not be able to pay your bills.
¨ Document the fee agreement. Each engagement letter or contingency fee agreement should contain a clear explanation of the legal fees that will be charged for the work to be performed. Any restriction of scope of work must be detailed in this agreement. In addition, be specific regarding the types of out-of-pocket expenses for which the client will be responsible: to include items such as filing fees, court costs, expert witness fees, photocopy charges, computer research, and long distance calls. Clients are often astonished by the amount of out-of-pocket expenses incurred on their behalf. Finally, it is never a good idea to adopt a new fee structure and write a subsequent fee agreement when a matter is pending.
¨ Bill on a monthly basis. Attorneys who charge an hourly fee should always bill the client on at least a monthly basis, unless the client has specifically requested another arrangement. This helps avoid unexpected surprises on both sides. The client isn’t hit with the unexpected large bill and the attorney is better able to determine if a client is going to have trouble paying the bills.
¨ Provide detailed billing statements. Detailed billing statements should describe the work performed by each attorney on a daily basis and how long it took. Entries such as 20 hours for “research” are unacceptable. Rather, the entry should read “research state case law on piercing the corporate veil.”
¨ Review all bills. The attorney responsible for the case or matter should review each bill for errors before it is mailed to the client.
¨ Copy the client on all correspondence and other materials relating to the client’s matter. Ask yourself which client is more likely to pay his monthly bill: the one who hasn’t received a single sheet of paper from his attorney in three months or the one who regularly receives informational copies from his attorney?
¨ TAKE PROMPT ACTION ON ACCOUNTS IN ARREARS. This is the single biggest mistake that attorneys make with respect to fee disputes. Most attorneys joined the legal profession in order to practice law, not to collect delinquent fees. Unfortunately, the client who can’t pay your fee today isn’t likely to pay it tomorrow. Attorneys must therefore deal with the delinquent client without delay.
¨ NEVER SUE FOR FEES. Establish a strict policy against suing for fees. If you cannot work out a realistic payment plan with the client, consider other alternatives such as arbitration or mediation. If you are tempted to sue for fees, consider this: the counterclaim for legal malpractice usually seeks an amount far in excess of the legal fees in dispute. Also, never sue someone who simply does not have the ability to pay the fee as there is no faster way to ensure that a malpractice counterclaim is on the way.
¨ Collect retainers. If you are having difficulty collecting fees on a regular basis, require a retainer fee up front. If the client takes their business elsewhere because you were realistic in setting the fees and in asking for a significant percentage of the fee as a retainer, this is a client that you are likely better off not having. The area with the largest accounts receivables is family law. The family law attorneys who are most successful in being paid promptly have well-crafted retainer agreements that require the client to maintain a certain amount on deposit and allow the attorney to withdraw if fees are in arrears.
¨ Call the client. Far more success is met with personal phone calls from the attorney to the client asking for the bill to be paid than are met by sending letters from the accounting department or submitting the file to a collection agency for further work.
10) Fail to successfully manage the client relationship. Listen to your client. This is their legal matter. For example, clients don’t always wish to pursue litigation. Take time at the beginning of the attorney-client relationship to identify clearly the client’s goals or objectives. Ask questions. Consider and propose alternative directions or solutions. Let clients feel some control in resolving their issue where appropriate.
Be personable. Pleasant conversation or a little levity when appropriate can demonstrate that you are invested in the client as a person. Clients will feel that you view them as more than just a money source. For business clients, learn as much as you can about the client’s business or industry. The more a client gets to know you and you them, the easier it will be for the client to place confidence and trust in you.
Teach your support staff about the importance of courtesy, timeliness, professionalism and confidentiality when dealing with clients. Remember that your staff is the interface between attorneys and clients. It is important to understand that if staff members are depressed, overworked, feel taken for granted, or are dissatisfied generally then negative messages, however unintended, are reaching your clients.
Finally, consider ways to let your clients know that they are important to you, and then implement those ideas. For example, as you meet your client in the lobby, tell the receptionist, “Please hold all calls. The next hour belongs to Ms. Jones.’” That kind of sentiment and statement can work wonders.