Byte of Prevention Blog

by Jay Reeves |

Overlap of Malpractice and Ethics

Lawyer BlogA malpractice claim is not the same as an ethics violation.

In fact most malpractice cases do not involve any sort of dishonest or unethical conduct. They are simply mistakes.

Still, there is a great overlap in the recurring fact patterns that lead to complaints with the State Bar and claims with Lawyers Mutual. Following are some double-danger areas:

* Neglect. Rule 1.3 of the Rules of Professional Conduct says “[a] lawyer shall act with reasonable diligence and promptness in representing a client.” Every day, clients telephone the State Bar to complain that their attorneys are not doing anything. Some of them might also call Lawyers Mutual. Frustration is usually the cause. Getting your work done quickly and efficiently is a simple way to avoid trouble on both fronts.

* Poor communication. Rule 1.4 says lawyers should keep clients “reasonably informed about the status of a matter” and should “promptly comply with reasonable requests for information.” A single returned phone call can mean the difference between a contented client and a complaining one.

* Fee disputes. Misunderstandings over legal fees can lead to unnecessary headaches down the road. Explain in plain English exactly how much you are charging for your service, when you expect to get paid and what you promise to do in return. Put these terms in writing. Clarify the difference between legal fees and expenses. Explain the consequences of a failure to pay fees. Think twice before suing to collect a fee balance.

* Advance fees versus nonrefundable retainers. Advance fees are deposits paid in advance for work to be done in the future. They should be placed in the attorney’s trust account and withdrawn as the work is done and the fee is earned. Nonrefundable retainers are payments for the reservation of the attorney’s time . They are not used to pay for any specific legal services. The distinction can be tricky for lawyers. Imagine the confusion for clients.

*Client abandonment. Rarely do attorneys simply leave clients high and dry. What happens more often is the client thinks the attorney has accepted the case – and, for example, will show up at court for the hearing – but the attorney is not of a like mind. Or the client has not made a fee payment or done something else the attorney believes is necessary to ensure continued representation. Consequently, the attorney closes the file, much to the client’s chagrin. Such complications can easily be avoided through clear and consistent communication, written letters of engagement, nonengagement and disengagement, prompt billing and getting paid in advance.

* Files held hostage. North Carolina, unlike some other states, does not recognize an attorney’s lien over a case file, even if the client has not paid a penny. Rule 1.16 makes it clear that the file and all materials in it belong to the client. Exceptions are made for incomplete work product and the personal notes of the attorney. The attorney is required to deliver the file to the client upon request, in a reasonable manner. The attorney can keep a copy of the file but must bear the cost of copying.

* Malpractice waivers and releases. It is improper for an attorney to ask a client to sign a release or waiver of malpractice liability at any point during the representation. Likewise, the attorney cannot ask the client to release the right to file a State Bar grievance.

* Supervision of employees. Not only is good risk management to supervise your staff and associate attorneys, but it is an ethical obligation as well. Read Rule 5.1. Make sure you are running a tight ship.

About the Author

Jay Reeves

Jay Reeves practiced law in North Carolina and South Carolina. He was Legal Editor at Lawyers Weekly and Risk Manager at Lawyers Mutual. He is the author of The Most Powerful Attorney in the World, a collection of short stories from a law life well-lived, which as the seasons pass becomes less about law and liability and more about loss, love, longing, laughter and life's lasting luminescence.

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