“Firms are downsizing, transforming and breaking up, so a lot of those people are looking to open their own offices,” says James Arden, a solo practitioner in North Hollywood, Calif., and moderator of a webinar on “Avoiding Traps and Pitfalls: The Ethical Dilemmas of the Solo Practitioner.” He and a panel of experts offered professional guidance for solo lawyers.
“Small and solo practitioners represent individuals who tend to be more involved in their litigation than tall-building clients or corporations,” warns Diane Karpman of Karpman & Associates in Los Angeles. “Individuals are more likely to complain when they feel their legal needs aren’t being met,” she adds.
Karpman explains that many complaints to the state bar involve small or solo practitioners and their failure to communicate with clients, lack of due diligence, failure to fulfill the client’s expectations or unnecessarily steep costs.
Incorporating these tips into your small or solo law practice will help your firm navigate potential ethical pitfalls and avoid clients’ complaints.
Be selective about the clients you represent. Karpman suggests avoiding these potential problem clients:
- “lawyer wannabes” (i.e., people who know a little bit about the law)
- clients seeking justice as a form of revenge
- those with multiple prior lawyers for the same case
- clients with communication problems
- clients who make a habit of recording everything. These clients create unnecessary difficulties for small practitioners, and avoiding them will save you from potential ethical traps.
Clearly define the scope of your representation. Shannon Nordstrom of Nordstrom Law Firm in Las Vegas recommends defining the scope of representation at the beginning of your relationship with the client. “My general rule of thumb is that if your scope of representation would generally overlap with another area [of law], you need to establish what you will and won’t do,” she says.
Scope of representation should be defined in your fee agreement with the client, she says. If you are handling multiple matters for a client, Nordstrom recommends doing separate retainer agreements for each one.
“Many states don’t require a written fee agreement, but a written fee agreement is the last and best opportunity you have to control your future happiness,” Karpman says. Clients may have selective memory where the specifics of an agreement are concerned, making it worthwhile to have your scope of representation defined in writing. California’s written fee forms are free online, and Karpman urges all of her clients to use them: “You can cut and paste the clauses you want to use,” she says.
Communicate regularly with your clients. “It’s important for your client to have an idea of what you’re doing so they have the chance to object,” says Nordstrom. Sitting down with your client at the beginning of your engagement to explain the litigation process and what they can expect is a great way to head off future complaints. “Put a plan in place to check in with your clients on a regular basis, even if you’re waiting on something for their case, to make them feel like part of the process,” suggests Nordstrom, adding that clients with open matters should be contacted at least monthly.
Keep in mind that the matter you’re handling for your client is likely one of the most important things in their life: adopting the client’s perspective allows you to evaluate how often you are communicating with them. “Failure to communicate is like a gateway event, like how marijuana is a gateway drug to everything that’s heinous and horrible, it’s considered the most significant complaint at the state bar,” says Karpman. She suggests having written firm policies on returning calls and emails as well as utilizing automated messages on email and voicemail to avoid constant interruptions.
Keep track of your trust accounting. “One of the hottest state bar discipline issues is trust accounting,” says Nordstrom. Law firm trust accounting requirements are not standard bookkeeping or accounting procedures, and it is imperative you know your jurisdiction’s requirements for trust account records that must be maintained. Employ three-way reconciliation to stay on track: “You should be able to add up all of the clients’ money, and that total should match your reconciliation between your bank statement and your ledger,” says Nordstrom. She suggests having a trust account check that is a different color than your operating check, and keeping your trust account at a different bank than your operating account.
Be wary of marketing your firm on the internet. “The main rule of all ethics rules is don’t misrepresent – be honest,” says Arden. This advice is especially important in the age of social media. To avoid giving away free advice online, Arden advises against direct contact with prospective clients on social media if you are unable to meet with them in person. Keep in mind that all disclosures and disclaimers apply anywhere your firm’s name appears, including websites and social media sites. Arden says your firm name, contact or address information and states of admission should be included on your website and social media platforms.
“Avoiding Traps and Pitfalls: The Ethical Dilemmas of the Solo Practitioner” is sponsored by the ABA Center for Professional Development, Center for Professional Responsibility, Division for Public Services, Law Practice Division, Section of Dispute Resolution, Section of Litigation, Section of Science and Technology Law and the Solo, Small Firm and General Practice Division.