GPSolo Technology & Practice Guide - June 2006

Moving Toward Malpractice

A strict reading of Model Rule 7.5 (Firm Names and Letterheads) would require many of us to change our letterhead to avoid “false and misleading communications.” I am only occasionally found in the elegant pile of masonry at the street address printed on my stationery. Most days, this is the true state of affairs:

Karen Erger
Attorney at Law
The Driver’s Seat of a Filthy 2002 Subaru Forester
Somewhere East of Omaha on Interstate 80

I suspect that clients would be less impressed with my “real” letterhead. I’d probably get some grief about practicing in a “van down by the river” like Matt Foley, the hapless motivational speaker on Saturday Night Live.

Yet every day we practice law from our cars, at the gate waiting for our flight, walking to the courthouse, at our children’s soccer practices. A phalanx of clever devices brings our e-mail, our phone calls, and our documents to us wherever we happen to be. With that freedom come additional risks that must be managed if we are to avoid professional malpractice.

Driving to Distraction

Annie Attorney Says:

Trust me. You don’t do your finest legal work while driving and checking your PDA.

You’re on the phone with a client as you speed off to a hearing, late again. Holy parking karma—there’s a space right in front of the courthouse! The client breaks into your reverie, saying, “Isn’t that right?” You realize that you have no idea what she has been talking about ever since you first spotted the sweet parking spot.

It’s obvious that talking on the phone distracts us from driving. According to the Insurance Institute for Highway Safety, drivers using phones are four times more likely to get into serious crashes. But it should also be evident that driving distracts us from our cell phone conversations. While that is as it should be, it means that important discussions should not be conducted from the driver’s seat of a moving vehicle.

The Lawyer ATM

“But I need to be available to my clients at all times!” you cry. Despite your sterling intentions, this can be a disservice to your clients. That 24/7 mentality turns out to be a malpractice trap.

The phrase 24/7—of which I’ve grown heartily sick—is defined by Wikipedia as “an abbreviation which stands for ‘24 hours a day, 7 days a week,’ including holidays and days otherwise that may alter limitations of work.” The definition cites supermarkets, ATMs, and gas stations as paradigmatic 24/7 businesses.

But legal services are not commodities such as gasoline and groceries. Our stock in trade, according to Abraham Lincoln, is our “time and advice.” We cannot stock it on the shelves, to be picked up by our clients on their way home from work. Our legal services are a customized product. They require thinking and research.

Being a lawyer ATM, dispensing legal advice at a moment’s notice, any time, day or night, is a malpractice trap. Walking back from a meeting, you get a call from your good clients Bill and Ted, of the Excellent Ice Cream Company. They want to know if a dairy they want to buy will qualify as a §1031 like-kind exchange for a nearby dairy they own in Newport, Vermont. “Sure does,” you say. And it would have, too, but for the fact that the new dairy is across the border in Canada—and thus doesn’t qualify.

It is all too easy to shoot from the hip and end up shooting yourself in the foot. “Have phone, will practice” should not be your motto. Inevitably, you’ll end up making mistakes. There is no shame in saying, “I need to do some research—can I call you later this afternoon, when I’m back in the office?” Good clients—the type you want to have and keep—will appreciate that you are taking their matters seriously enough to get things right.

Set appropriate client expectations up front. Your client needs to know that you will sometimes be with other clients, in court, even on vacation. Introduce your client to the team that will be working on her matter. Give her the number of a colleague at your firm who will help in an emergency if you are not available. By doing this, you will demonstrate that you care about your client and her matter—which, survey after survey tells us, clients value more than technical brilliance.

Note that if you allow your clients to believe that you are the lawyer ATM, they won’t take “later” for an answer. “I thought this would be an easy question,” they’ll say, and urge you to take your best guess, instead of making a thoughtful legal judgment. There is no “best guess” standard of care—you will be held to the same standard as if you had answered the question in the comfort of your office, with your research tools close by, and an adequate amount of time to do the job.

One further thought about the 24/7 trap: I can’t prove it, but if your clients think of your advice as a 24/7 commodity, I’ll bet they’ll wonder if they can get it cheaper somewhere else, or if you will offer a “Blue Light Special” to keep their business.

Fruit of the Poisonous BlackBerry

Long ago, when I was young and the earth’s crust was not yet cool, it was nerdy to carry tools like slide rules on your belt. Now lawyer gunslingers carry their BlackBerrys in a hip holster, ready to e-mail at any time.

The mobile phone made us accessible everywhere—but the BlackBerry made others accessible to us everywhere. The next time you go to a meeting, a seminar, or even your kid’s dance recital, watch for thumbs flying as people compose and send e-mail. Where a mobile phone conversation would prompt ugly stares and a volley of shushes, our e-mail shoots silently, secretly, to the recipient.

It is especially tempting to shoot from the hip via e-mail. There is a perception that e-mail is especially urgent and must be answered right away. Furthermore, because e-mail feels like a more casual form of communication, we may fail to hold it to the standard we expect of “letterhead letters.” The latter are formatted nicely, broken into paragraphs, spell-checked, and proofread, maybe even handed to a colleague for a critique. These quality controls are often omitted with e-mail, especially when we’re on the run. E-mail feels casual and personal, but it is just as much of a business communication as a tome written on our watermarked, engraved stationery and should be treated with the same respect.

Speaking of respect, some people who are decent enough in person feel free to be disrespectful and nasty in e-mail. They are like the Wizard of Oz, who spoke in a powerful, scary voice when he was hidden from view but turned out to be a dweeby little guy behind the curtain. It is easy, when you have just lost a motion, missed your flight, got a noisy hotel room right by the pop machine, whatever, to respond to a nastygram from the Wizard with a zinger of your own. Don’t. Your snotty response has the potential to embarrass you and make you look like a jerk. What you say may, indeed, bounce off the Wizard and stick to you. More important, not everyone is a great writer—it’s possible that no disrespect was meant.

It is remarkably easy to misconstrue e-mail communications. E-mail cannot communicate a tense posture, a nervous laugh, a pregnant pause that would prompt us to ask for more details. Research suggests that communications are 55 percent body language, 38 percent tone, and only 7 percent words. If so, then e-mail communications give us less than half the story—and set us up to give wrong answers and bad advice.

As an example, take the classic case of mutual mistake: Raffles v. Wichelhaus. As you doubtless recall, it involved a contract for cotton “arriving on the Peerless.” The problem was that there were two ships called the Peerless, one leaving Bombay in October, one in December. The buyer meant the October load, but the seller meant the December shipment. E-mail makes this mistake just as possible today as in 1864:

Subject: Cotton on the Peerless

I’ll buy 125 bales of Surat cotton coming from Bombay on the Peerless @ 17.25/lb.


Subject: U got it dude. EOM


EOM, by the way, stands for “end of message.” Jargon is another fine opportunity for e-mail miscommunications because many people would rather walk on their lips than ask, “What does EOM mean?”

In short, e-mail can be a good start to a discussion, but it should almost never be the end of the story. Face to face meetings, even telephone conversations allow us to elicit more detail, correct misunderstandings, and, with luck, bring about a meeting of the minds.

The McDonald’s Bag that Could Save Your Bacon

Our freedom to communicate while zipping around tempts us to neglect documenting our discussions with clients and other important people. For years, loss prevention experts have adjured lawyers to pick up pen and paper as soon as the phone rings. This is tough when you’re driving. If you have one hand on the wheel and the other on the phone, you’ll need to grow an extra hand to take notes of the conversation. Alternatively, you could, and should, pull over to give the call the attention and documentation that it deserves.

Writing it down will memorialize what was said and remind you to follow up. It is all too easy to forget what you just promised when you hear that your flight home—the last one today—has been canceled. Once you’ve written it down, make sure that documentation hits your file, even if it’s on the back of a greasy McDonald’s bag you find on the floor of your car. (OK, my car; I’m sure yours isn’t like that.) Documentation can, indeed, save your bacon in the event of a malpractice suit.

If you’re sending e-mails from afar, be sure paper copies hit the file, too. Consider cc’ing yourself on every e-mail, so you will remember to follow up, print, and file when you get back to your office.

Getting Dumber by the Minute

Information overload makes us, well, less smart. It’s been shown that an average worker’s functioning IQ falls ten points when distracted by ringing telephones and incoming e-mails. This drop in IQ is equal to missing an entire night of sleep, and it’s over twice as great as the four-point drop experienced after smoking marijuana.

We owe our clients a duty of competence. We wouldn’t dream of handling an important matter on no sleep (well, maybe once in a while) or while smoking pot ( definitely no). Paradoxically, we owe it to our clients to pull the plug on them so that we can give proper attention to their matters.

This is especially true for lawyers on the go, who experience many more distractions outside the office cocoon. If you’re working on the road, find time to do it without interruptions. A mobile phone with voice mail and caller ID is all you need to (1) give callers your office number and the name of someone who can get through to you in an emergency, and (2) take emergency calls from your office, while letting “mystery” calls ring through to voice mail.

“Without interruptions” means without checking e-mail, too. Chicago lawyer Todd Flaming, who writes and lectures on law and technology, says e-mail overload is a growing problem: “Lawyers now spend hours each day just processing a seemingly never-ending stream of communications. BlackBerrys and other remote devices exacerbate the problem by creating a 24/7 immediate-response mentality and doubling the already substantial volume of messages, adding stress and pressure.”

If, in fact, our time and advice is our stock in trade, we must manage technology so that it maximizes our time and improves our advice. When it begins to sap our time and impair our advice, it’s time to switch it off.

Switch Off the Guilt, Too

It should go without saying, but I’ll say it anyway: There is absolutely nothing wrong with devoting your full attention to client matters—or, in fact, to your kid’s dance recital, to driving safely, or even to your own thoughts. Switch off your guilt when you switch off the electronics. Sometimes it’s necessary to disconnect from technology to reconnect with your practice—and, yes, your family and yourself.


Karen Erger is with Holmes Murphy & Associates in Cedar Rapids, Iowa. She can be reached at


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