April 5, 2016

Authors:  Randall A. Miller, Esq. and Caroline van Oosterom, Esq., Miller Law APC, Los Angeles

Checklist

A decision goes against your client. The opposing party does not accept the offer. Your motion is denied. Your bills are higher than expected. A deal turns sour. Perhaps you made a mistake or the case just failed to develop how you anticipated. Bottom line:  your clients are not happy with you.  What should you do?

First and most importantly stay calm. Not every complaint or mistake will lead to a lawsuit filed against you.  Moreover, by being proactive, truthful, and respectful of your client, the odds increase that the client will decide not to file a claim against you.  Here are some additional helpful tips on how to handle a mistake and prevent an adversarial relationship from ever developing.

  1. Do not ignore the situation as that strategy will just make it worse. Analyze any concerns of the client. – Are they complaining in order to avoid paying a bill?  Or is there a legitimate issue that justifies the complaint? Sometimes an attorney, just as well as the client, can lose objectivity.
  2. Consider consulting with another attorney, such as in-house general counsel, to analyze the client’s concern and provide an objective opinion regarding the issue.  – Be mindful, however, when discussing the client’s concern with another attorney that these conversations may possibly be subject to discovery if you still represent the client. Be especially careful before you put anything in writing. Keep to the facts.
  3. Respond to all telephone calls promptly; it may be appropriate to respond by advising the client that you will set a time to discuss the file at a later date.
  4. Continue to proactively keep the client informed of all developments in the case even if you do not hear from the client.
  5. If you ultimately realize that you have made a mistake, calmly report the underlying facts to your client. Do not admit that you may have committed legal malpractice. Again, keep to the facts!
  6. Preserve your file and all communications. – Preserve all e-mails, text messages, and billing records. You will likely be asked for these documents and it is better to produce them without the client’s resorting to forensics.
  7. If requested, provide your client with a copy of the file. Seek your own advice of counsel if you have concerns regarding what to produce (or call the Swiss Re Corporate Solutions hotline for advice).
  8. If you determine that there is a conflict of interest, advise the client immediately.  – If you wish to continue to represent the client, ethical rules may require that the client sign a conflict waiver. Remember to include information regarding the right to seek independent legal counsel in any conflict waiver.
  9. Thereafter, take all necessary and reasonable steps to correct or mitigate the mistake, keeping the client informed of all developments.
  10. Review your lawyer’s professional liability policy for reporting requirements. * Ensure that you follow ALL reporting and notice requirements of actual and potential legal malpractice claims.  * If there is a demand for money or services, report it immediately.* Do not make a settlement offer without your insurer’s consent.

This article has been provided and reprinted with the permission of Swiss Re. The material is for general information purposes only and is not to be relied upon or used for any particular purpose. Capital Professional Insurance Managers, Inc. and Swiss Re shall not be held responsible in any way for, and specifically disclaims any liability arising out of or in any way connected to, reliance on or use of any of the information contained or referenced in this article. The information contained or referenced in this article is not intended to constitute and should not be considered legal, accounting or professional advice, nor shall it serve as a substitute for the recipient obtaining such advice.