This program is designed for the attorney who wants basic beginning principles on how to avoid malpractice claims. I would describe it as a beginner-level program.
In a story that is sadly all too familiar, the Oregon Supreme Court has issued an opinion and public reprimand of Brian Conry, an immigration lawyer who had the temerity to respond to three negative reviews posted online by a former client. In re Conry (OSB 18-104) (SC S067502). Conry represented a client who was seeking a stay of deportation proceedings. At some point the client engaged a new attorney who obtained the relief that the client was seeking. I will quote one of the reviews and responses:
“Horrible experience with [Respondent]. He lost my case. The government has ordered me deported. I fired him. Went to Gonzales Gonzales Gonzales Immigration law firm. They helped me to appeale [sic] my case and we won in about in about 3 month! [sic]. I found out that in my case I was not even deportable. But [Respondent] never told me that. He took over $20,000 in 5 years of fighting this case and lost it. STRONGLY RECOMMEND NOT TO HIRE THIS GUY.!!!”
The case is captioned In re Gary K. Davidson, 2017 PR 00099. There were two charges of misconduct: (a) failing to disclose a fee arrangement with a land surveyor; and (b) falsely certifying compliance with MCLE requirements. The first charge was not proven but the second charge was proven and a three-month suspension was recommended. The take-away from this is that Illinois will punish a false MCLE certification. The Panel noted that few reports by lawyers are audited so, therefore, there should be punishment if the lawyer makes a false representation.
Over the years, I have thought about this a bit. My current answer to this question is to be mindful of your own emotions when dealing with clients.
If a client criticizes you unfairly or makes you angry, stop writing that letter or email and let things cool off. You have may have to write to the client to correct the record, but do not do so when you are angry. Angry lawyers do dumb things like (a) disclose a client confidence to a third party; (b) threaten to file an ARDC grievance against another lawyer; or (c) file an angry motion with a judge.
When you are angry, you are not thinking correctly. Take time and cool off. Discuss the matter with a colleague or an experienced ethics lawyer. Then it may be necessary to write back to the client and inform that person or corporation of your opinion. Managing your own emotions is the most difficult challenge you will face in dealing with an unhappy client. Remember that the client may be dissatisfied with the result of the matter and that he has emotions as well.
Two law professors, Robert Anderson IV and Derek Muller, have published “The High Cost of Lowering the Bar,” in the Georgetown Journal of Legal Ethics. It can be found in Volume 32, page 307 of that law review.
Anderson and Muller argue, based on statistical evidence that lowering the bar passage score will mean an increase in attorney disciplinary claims. They show that students with lower bar passage scores are more likely to have public disciplinary matters. They argue that the attorney’s score on the bar exam correlates with discipline rates throughout the lawyer’s career. Lawyers with higher scores are far less likely to be disciplined. Lawyers with low scores are more likely to be disciplined.
Anderson and Muller argue against lowering the bar exam score because lower scores mean weaker quality lawyers.
One issue that arises frequently is whether an agreement between two lawyers to share fees on a case is enforceable.
Rule 1.5(e) provides that:
(e) A division of a fee between lawyers who are not in the same firm may be made only if:
Disciplinary investigations can be frustrating and time-consuming. Responding poorly to one can have serious consequences in that the punishment is often increased for those who do not acknowledge that they made an error. In Debra Cohen v. Patricia King, AC 40834 Connecticut Court of Appeals, Debra Cohen attempted to bring a defamation complaint against the disciplinary counsel who signed a disciplinary complaint against her. Ms. King moved to dismiss on the basis of the litigation privilege – which generally provides immunity for in-court statements and testimony. The trial court granted the motion to dismiss and the Court of Appeals affirmed. It noted that “statements made in a grievance proceeding were shielded by absolute immunity” and that the act of filing a grievance was also protected. This is an excellent and well-considered opinion. Witnesses have to be able to speak freely in disciplinary proceedings. Lawyers should not be able to use the threat of litigation to silence their critics or former clients.
Ed Clinton, Jr.
The case is GB v. Christine Rossi, A-240-17T3. The case was decided in New Jersey and is an unpublished opinion. The case illustrates one problem with legal malpractice cases – there may be wrongful conduct, but the plaintiff must tie the wrongful conduct to her damages.
Plaintiff was getting divorced. She met with Rossi for about an hour and made numerous disclosures. Rossi declined representation.
Later, plaintiff’s husband filed for a temporary restraining order against plaintiff alleging that she had committed domestic violence. At trial, Rossi represented husband. Husband won the trial and GB was evicted from the marital home. Please note that Rossi did not file an appearance in the divorce case. She only appeared in the domestic violence case.
One question which comes up frequently is whether a client can sue his former lawyer for legal malpractice based on what the client believes is an inflated legal bill.
A legal fee dispute is essentially a breach of contract case filed by the lawyer against the former client. Here the specific complaint was that the lawyer did not explain that, under the fee agreement, the lawyer was not required to refund any portion of the client’s deposit.
“Plaintiff next argues defendants breached a fiduciary duty to plaintiff by failing to properly advise him as to the non-refundable aspect of the retainer agreement. “In entering a contract at the outset of a representation, the lawyer must explain the basis and rate of the fee . . . and advise the client of such matters as conflicts of interest, the scope of the representation, and the contract’s implications for the client. . . .” Restatement (Third) of the Law Governing Lawyers § 18 cmt. d (Am. Law Inst. 2000). RPC 1.4(c) states, “A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”
The case is Bar Counsel v. Peter Farber, SJC 11171 (Massachusetts Supreme Judicial Court). This post is a repeat from a few years ago. I regard the opinion highly and think every lawyer should read it before taking any action adverse to an unhappy client.
Farber was the subject of an attorney disciplinary complaint. The complaining party, G. Russell Damon, testified against Farber. Damon accused Farber of wrongful conduct in connection with a real estate transaction. The disciplinary proceeding resulted in a reprimand against Farber.
Farber then brought a defamation case against Damon. Damon argued that he was immune because he testified under oath in a public proceeding. Damon took no other action to publicize his testimony.