GPSOLO April/May 2009
How the Little Stuff Can Get You in Big Trouble
“ Don’t sweat the small stuff” may be good advice for leading a stress-free life, but for a lawyer “small stuff” can be downright dangerous. The typical grievance that a client files against a lawyer doesn’t allege an obvious violation of the Model Rules of Professional Conduct, such as “borrowing” from the escrow account. Most often, a client grievance tells the story of a bunch of little things—none of which, by itself, would concern disciplinary authorities—that eventually lead to a botched case or client dissatisfaction. What follows is your worst nightmare.
Say It Ain’t So, Joe
You really aren’t surprised to get the grievance in the mail. How did it come to this, you wonder? How did one little case for a downward modification of child support turn into the bane of your existence?
“I never should have taken the case in the first place,” you mutter to your assistant. “It’s been 15 years since I’ve done any domestic work; I didn’t realize the new family court had such strict rules about everything.”
“At least you got a decent retainer out of it,” your assistant reminds you.
“Yeah, thank goodness I got some cash up front, because Joe seemed to think I was working for free! I’m sure I told him the $2,500 was just a retainer for the first ten hours, and that I would bill him $250 an hour after that. I’ve got 30 hours in this file!”
“It’s been a nightmare,” your assistant agrees. “Joe seemed like such a nice guy when we first took his case. I didn’t expect him to be such a demanding client. He even got testy when you were out sick—it’s like he expected you to file his case from your hospital bed!”
“And you said he called every couple of days while I was on trial with the McKloskey case. Nobody predicted the trial would take six weeks. Anyhow, you told him I’d let him know when we had a court date, right?”
“Yes, and he was positively hostile! He kept asking questions about the modification. He wanted to know if he had to pay the old rate of child support, or if he could pay a reduced amount since he had lost his job. I told him I couldn’t answer any legal questions, and he needed to wait for your trial to end.”
“Whew! I shudder when I think about the conversation that took place a few weeks after my trial. Joe tricked me into taking his call!” you reminisce. “Claiming to be a potential new client with a great case—I can’t believe I fell for that one! Anyhow, I actually thought things were back on track after that call. I promised to file the modification by the end of the week, and Joe seemed satisfied.”
“You had to stop work on Joe’s modification when Mrs. Busby came in,” your assistant reminds you. “With her house in foreclosure and the sale only a few days off, you really had no choice but to drop everything and file her bankruptcy.”
“Before I knew it, another month had gone by,” you remember. “I’ll admit I was dodging Joe’s calls at that point because I wanted to have the modification filed before I spoke to him.”
“I took the heat for that,” your assistant reminds you. “I reassured Joe that everything was fine, that the case was moving along as expected, and that he would hear from us when we got a court date.”
“You never said I’d already filed the case,” you add. “I don’t know how Joe got that impression.”
It all blew up when Joe, impatient at what he believed to be the court’s delay in setting his case for hearing, called the clerk’s office to try to arrange for a hearing date. Of course he found out that you had not filed the case yet. He turned up in your office without an appointment and made a real scene when your assistant told him you were with another client. You finally got him calmed down by agreeing to finish the Petition for Modification on the spot.
“I have always prided myself on my ability to work under pressure,” you admit. “Within a few minutes I was able to pull together a passable modification based on a form I used in another case. I drove with Joe to the courthouse so that he could see for himself that I’d filed the case. That satisfied him for a while.”
“Then came the hearing,” you remember. “Imagine my shock upon arriving at the courthouse to find that Joe wasn’t there!”
“I can’t believe he says he didn’t know about it!” your assistant exclaims. “You were going to call him the day we got the notice. I thought I’d confirmed it with a letter, but I can’t find a copy in the file. . . .”
“With no client to testify, I thought it was in Joe’s best interest to dismiss the petition. I’d forgotten all about his ex-wife’s counterclaim. She produced some paperwork that indicated Joe was working and earning more than ever! The judge entered an order for increased support!”
“I definitely sent Joe a copy of that order,” your assistant responds, “but it came back in the mail marked ‘undeliverable.’ At least that one’s in the file.”
“And now the ex is trying to hold Joe in contempt for not paying the increased amount. I didn’t want to ruin his holiday; I figured I would let him know about the contempt action after Thanksgiving.”
You thought you were doing Joe a favor by not telling him about the contempt action before Thanksgiving. You only wanted him to have a decent holiday, but when he found out you knew about the motion for contempt for two weeks before you sent it to him, he went ballistic.
At least that hearing went well; the court allowed you to reinstate Joe’s case after Joe explained why he missed the hearing. You took the heat from the court so that your client would not be further harmed. You gathered information from Joe about his income and prepared to prove that the amount he paid in child support should be decreased.
You finally got the revived case on a calendar, only to find out that Joe’s ex-wife is in the Army Reserves with a unit that shipped out to Afghanistan last week. The court granted her a stay under the Servicemembers Civil Relief Act. It will be a year before she returns. In the meantime, Joe is stuck paying a rate of child support that exceeds his entire income.
“And now I’ve got to answer to the Bar,” you grouse. “Maybe I could have handled Joe’s case a little faster, but I don’t think I did anything unethical! Did I?” you ask your assistant hopefully.
“Well, I guess there are a few things we could have done differently,” your assistant responds.
So what can we take away from the story of Joe and his grievance before the bar? Several lessons spring to mind.
Don’t dabble. Dabbling in an unfamiliar practice area can lead to malpractice and ethics problems. A lawyer who does not handle domestic matters should be careful about accepting a domestic case without either devoting sufficient time to learn the subject matter or associating with a domestic lawyer. In this case, Joe may have a malpractice claim against you for the extra child support he is paying.
Don’t take on too much. No lawyer wants to turn away business; however, your commitments to existing clients and your busy trial schedule made it impossible to handle Joe’s case within a reasonable time frame. Every now and then it is better to “just say no.”
Have a written fee agreement. A client who believes he has paid too much is more likely to file a grievance or a malpractice claim. Some clients don’t know what a “retainer” is, and few understand how they will be billed. Why not avoid confusion with a written fee agreement? A written agreement also provides a good opportunity to outline exactly what the representation covers. If you are billing on an hourly basis, it’s also a good idea to send periodic statements rather than a big “surprise” bill at the end of the case.
Communicate. “My lawyer won’t return my phone calls” is still the number-one complaint from clients. Joe deserved periodic updates about his case with some explanation of the delay. Intentionally or not, the platitudes that you and your assistant used to placate Joe misled him. A letter describing your plan for handling the case would have gone a long way toward meeting your duty to communicate and probably would have increased Joe’s level of confidence in your representation.
Don’t make promises you can’t keep. When you spoke to Joe, you really planned to get his modification done by the end of the week. Joe assumed that you had done so because he heard nothing to the contrary. To him, your statement was a promise that you did not keep.
Stay organized. Many disciplinary problems result from bad management of the law office. Your assistant could help here by ensuring that every client file has a complete copy of correspondence, that all clients receive periodic updates on their cases and timely notice of upcoming hearings, and that bills go out monthly.
Have a contingency plan. Many solos do not have a plan in place to deal with unexpected illness or other emergencies—sometimes leaving non-lawyer staff to manage the practice as best they can. All that is necessary is a reciprocal arrangement with another solo to step in when needed.
Don’t put off unpleasant tasks. No one wants to be the bearer of bad news, but clients need to hear it as soon as possible. It’s easier for the client to handle if you explain options for handling the problem along with the bad news.
Avoid the rush job. Lawyers like to work under pressure, but doing things at the last minute leads to mistakes. Plan ahead and give your blood pressure a break.
Be prepared. The Boy Scouts have it right. Know your file and take the time to prepare your client before you walk into the courtroom.
Paula J. Frederick is deputy general counsel for the State Bar of Georgia. She may be reached at firstname.lastname@example.org.