MALPRACTICE ALERT! SUMMER 2020

A quarterly periodical offering numerous loss prevention and practice management tips, along with updates on rules, laws and procedures.

The Summer of 2020 finds many of us working remotely and facing new challenges in the practice of law.

 

We hope you find this information useful in your practice. As always, if you have questions or comments, please feel free to contact me.

 

Gretchen K. Mote, Esq.
Director of Loss Prevention

 

Malpractice Alert Topics:

Building Client Relationships

The midst of a pandemic doesn’t seem like a logical time to focus on building client relationships. However, this is an important aspect of your legal practice at any time! Perhaps it is even more important now.

 

Building the client relationship logically begins with attracting prospective clients who need your services. Thus, it is vitally important that you clearly communicate through your website, social media, print or electronic advertising who you are and the type of legal services you provide. Keep your media, advertisements, website and other firm communications accurate, current and designed to resonate well with your desired clientele. Increase your involvement with your community, “network”, and work weekly on creating a continuous stream of the best advertising – word of mouth referrals.

Checklist for Building Client Relationships
  • Effectively communicate who you are & what services you offer
  • Follow up on prospective client contacts
  • Use effective client communication to keep clients informed
  • Send File Closing Letter & Closed Client Survey when you conclude the representation
  • Reach out to clients to see how they are doing & how you can be of service

First impressions matter, so once a prospective client contacts your firm, be sure to follow up in a timely manner. With many clients practicing social distancing or working from home, they often expect immediate responses to their calls or emails. Listen carefully to what the prospective client presents as the legal matter for which representation is being sought. As OBLIC has warned, resist the temptation to dabble, and ALWAYS run a conflict check before undertaking the representation.

 

OBLIC has also informed recently of the importance of using engagement and fee agreements to communicate with clients. With many clients now relying on email or other electronic communications rather than in-person meetings, timely responding to emails gains new priority. It’s still a good idea, when the matter warrants, to write a client letter on letterhead and attach it as a PDF sent via email. This can signal to the client an increased importance to the communication and that the letter needs their attention.

 

Timely and regularly informing the client of the status of the representation is essential to building trust and rapport with your client. These can be detailed reports, or often very simple updates or status reports depending on the nature of the matter. The client will be far more satisfied with your representation, and much better prepared to make important decisions along the way, if they feel they have been clearly kept in the loop. When you conclude the representation, send a file closing letter and give the client the file. We recommend that firms send a survey at the conclusion of their representation to receive the client’s comments and feedback – it is amazing what you might learn and improve upon!

Keeping in touch with former clients is also a good practice, particularly now as many feel isolated and would appreciate a friendly face/voice. Checking in on former clients may also create an opportunity for those clients to consider additional legal services your firm can provide, such as estate planning, updating documents, etc. Whatever your practice area, cultivating positive client relationships will pay dividends in the future.

Dealing with Difficult Clients

Although attorneys can – and do – have difficult clients at times throughout their practice, it seems that extraordinary situations multiply the number of challenging clients. The initial client interview is an important step in establishing the relationship, and provides an opportunity to identify “red flags” that the client may potentially be difficult. These may include:

 

  • Indignant or belligerent attitude
  • Desire for revenge
  • No concern for the costs of representation
  • Difficult to manage unrealistic expectations
  • History of litigation, particularly unsuccessful litigation
  • History of shopping or firing other attorneys
  • An immediate, pressing deadline, such as a statute of limitations

 

The attorney should discuss with the client the scope of the representation, the duties of the client and what the client should reasonably expect from your firm. If the client disagrees with what you believe to be the most realistic outcome (or range of outcomes) that can be achieved, it may be a good idea to not undertake the representation. In that case, a non-engagement letter should be sent. (See OBLIC Malpractice Alert! Fall 2019 for sample letters.)

Checklist for Dealing with Difficult Client
  1. Use the initial interview to determine client goals
  2. Look for “red flags” of difficult client
  3. Set client expectations
  4. If it appears client will be too difficult to represent – Say NO!
  5. Don’t undertake representation and send a non-representation letter
  6. If situation with difficult client and situation deteriorates – Fire client & withdraw. Send a dis-engagement letter
  7. If you continue to represent difficult client – document the file
  8. When representation ends – It’s over – don’t go back for more!

If representation is undertaken and the client later proves to be difficult – not cooperating in their case, ignoring legal advice, not meeting their financial obligations – it may be necessary to fire the client and withdraw from representation. If this occurs, be sure to send a disengagement letter and follow the requirements of Rule 1.16. (Yes, you must give the client their file even if they have not paid you!)

 

If you decide to continue the representation – or if the Court does not permit your withdrawal – be sure to pay extra attention to thoroughly and completely documenting the file. Put every communication in writing, document all phone calls and save all emails.

 

When the agreed upon representation of the difficult client is ended resist the temptation to take on another matter or to continue with the “next phase” of the matter. If you do decide to again represent this difficult client, establish parameters for the representation to convert the difficult client into an acceptable client.

How Can I Advertise My Firm?

Two common transition scenarios experienced within law firms are lateral hires and retirement. With proper planning, either of these transitions can be effectuated successfully. With either transition, the foremost concern should be the clients. The attorney should have a list of all open files, with client contact information as well as an accounting of all client funds in the IOLTA. Clients should be notified of the attorney’s change, given a choice about representation of an open matter, and provided the opportunity to obtain the file.

 

For the attorney making a lateral move to another firm, the Ohio Ethics Guide: Switching Firms contains a sample joint letter of departure, a sample request for transfer for the client files and a checklist for leaving a law firm.

Checklist for Practice Transition
  • Determine type of transition
  • Complete list of client files with contact information
  • Notify clients of changing status – with file disposition form
  • Return original files per disposition form or notice
  • Notify malpractice carrier

For the retiring attorney who is closing a practice, closed client files should also be addressed. A list of all closed client files will be a necessary starting point to contact former clients in order to return their files. Executed original wills and estate planning documents, deeds and other original documents are especially important to return. See Hotline Questions: Client Wills 7 30 2019. The Ohio Ethics Guide: Client File Retention also provides useful information on this topic. A retiring attorney should discuss whether options are available for an Extended Reporting Endorsement – “Tail” – for their malpractice coverage.

 

Some attorneys looking to retire or transition their practice choose to become “Of Counsel.” An “Of Counsel” relationship is other than that of a partner or associate (See Rule 7.5 Comment [3]) An “Of Counsel” attorney can be a part-time practitioner who practices in association with a firm or a retired partner of the firm who remains associated with the firm. (See Opinion 2008-1. An attorney may also practice simultaneously in more that one firm (See Opinion 2013-1). Further a law firm may be “Of Counsel” with another law firm (See Opinion 2014-4). “Of counsel” offers options for a number of practice transitions for attorneys at various stages of practice. If an attorney decides to become ‘Of Counsel” that should be discussed with their OBLIC Underwriter.