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Five Rules to Avoid Bar Complaints in Private Practice

By Travis Pickens, OBA Ethics Counsel

1) Dabbling can be a disaster. Do not “dabble” in high-conflict, high-emotion litigation. Full-time family lawyers and criminal defense attorneys are born for their work and would never do anything else. There is also a fairly sizable group of gifted lawyers that can competently, successfully and profitably do family or criminal law and one or two other areas. If you are not in one of these two groups, then find some other areas in which to dabble. These two areas typically comprise almost 50 percent of the grievances filed each year. Responding to a grievance of any arguable merit (or simply which appears creditable, even though untrue), with the assistance of seasoned independent counsel, will likely be at least a $2,000 experience and some lost sleep.

2) Educate your client. Educate your client with your fee agreement and other informational materials. Think of your fee agreement as more than the monetary terms. If done well, it will likely be your best defense if you or your work is ever challenged. Require the client to read it and initial each page. Be specific as to the identity of the client and the scope of the work you plan to do. Do not overstate your responsibility. Think about incorporating the following types of provisions: interest on past-due amounts (check applicable consumer credit law); payment to you in a contingency matter if you are terminated without cause; mediation and arbitration clauses in the event of a dispute and choice of law and venue clauses if the client is out of state. Make sure that the client agrees to follow all laws during your representation, and will not discuss the case, you, the opposing party or lawyers, and judges on social websites or other media.

Inform the client of the uncertainty of litigation and the inability to promise results, and that most public records are available on the Internet. You can do this through an informational packet available in hard-copy and electronic form. Make sure the client acknowledges in the fee agreement that it has been provided and that they have read it. Have a trusted assistant sit with you during your initial explanation in case the client later claims some kind of misunderstanding. You will have a credible third-party witness who can bolster the defense of a grievance or claim. Prepare a DVD with your standard explanation for routine matters (e.g. how a lawsuit proceeds or the fundamentals of estate planning) and have your assistant show it to each new client. Update it as needed, do not use stale material. It will save you time, your client money and the boredom of covering the same material client after client.

3) Toxic people make terrible clients. This can happen in any area of law, and with all kinds of people, from the simple to the sophisticated. If the vibe is bad at the beginning, it will never get better, and it will likely get worse. Look for and keep the “A” and “B” attitude clients. Avoid and eventually stop representing the “C” and “D” attitudes. Hurt people will hurt people, and toxic people have generally been hurt or are hurting themselves. If you choose to represent these folks, then do so with your eyes wide open, your file fully documented and your malpractice premium fully paid.

4) Create realistic expectations. It is all about meeting realistic expectations.  Sympathize with your client but be honest about the options available and what may happen. Clients appreciate the truth, even if it is bad news. It is about trust. Be careful as well in what services you promise the client. Be realistic about your own limitations and do not be afraid to ask the client to associate with another lawyer if in uncertain waters.

5) Keep your promises. Clients generally understand good lawyers are busy. What they do not understand is when you fail to meet a promise (see Rule 4). Return all calls as quickly as possible, but no later than the next 24 hours.

About The Author

Travis Pickens serves as OBA Ethics Counsel. He is responsible for addressing ethics questions from OBA members, working with the Legal Ethics Advisory Panel, monitoring diversion program participants, teaching classes and writing articles. A former litigator in private practice, he has served as co-chair of the Work/Life Balance Committee and as vice-chair of the Lawyers Helping Lawyers Assistance Program Committee.

Originally published in the Oklahoma Bar Journal -- Sep.4, 2010 -- Vol. 81 No. 23 

Travis Pickens is the OBA Ethics Counsel. He can be reached at ethics@okbar.org.