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self-study / Legal Ethics

Tips for avoiding a State Bar complaint

Abelson heather web

Heather E. Abelson

Opentext Corporation

951 Mariners Island Blvd
San Mateo , CA 94404

Phone: (650) 645-3060

Email: habelson@opentext.com

UC Hastings

Heather E. Abelson, formerly a trial counsel with the State Bar, is chair of the State Bar Defense/Legal Malpractice Group at Gluck Daniel LLP

By Heather E. Abelson

No attorney wants to be the subject of a complaint to the State Bar. What steps can you take to maintain a successful relationship with your client? Below is a list of common types of client complaints to the bar and practice tips on how to avoid being the subject of one.

Failure to Perform with Competence

Clients do not want to pay for nothing. Pursuant to Rules of Professional Conduct, Rule 3-110(A), an attorney may not "intentionally, recklessly, or repeatedly fail to perform legal services with competence." While the bar will not normally second-guess strategic decisions by an attorney, an attorney who does nothing or who fails to complete the very task for which the attorney was hired, may face discipline.

Practice tip: Consider your caseload and ask whether you have the time, knowledge and resources to take on a client. Make sure to execute a written retainer agreement and clearly define your role. Do not miss deadlines.

Failure to Adequately Communicate

Clients dislike being ignored. Business and Professions Code Section 6068(m), requires an attorney to "respond promptly to reasonable status inquiries" and to keep clients "reasonably informed of significant developments." Failing to respond to a single phone call or email will not result in discipline, but engaging in a pattern of this conduct may.

Practice tip: Create written reminders to speak with your client, and any time a significant development occurs in the client's case, notify the client by phone and in writing.

Failure to Return Unearned Fee

When the attorney-client relationship breaks down, clients usually want a refund. Rules of Professional Conduct, Rule 3-700(D)(2), requires an attorney to refund any unearned fees upon termination. The bar will refer a simple fee dispute to fee arbitration. However, if an attorney also fails to perform competently, the attorney may face discipline.

Practice tip: Chances are that your retainer agreement has a non-refundable retainer clause. Notwithstanding that provision, your retainer is likely refundable. The only type of true non-refundable retainer is where an attorney is retained to be on call, as opposed to being retained for a specific matter. If a fee dispute arises, consider whether issuing a refund will cause you more grief then facing bar discipline.

Failure to Return Client File

When the attorney-client relationship ends, clients often want their papers and property. Rules of Professional Conduct, Rule 3-700(D)(2), requires an attorney to return all client papers and property, subject to any nondisclosure agreement or protective order, upon termination and client request. This includes "correspondence, pleadings, deposition transcripts, exhibits, physical evidence, expert reports, and other items reasonably necessary to the client's representation, whether the client has paid for them or not."

Practice tip: Return the file, period.

Failure to Provide an Accounting

Clients want to know how their attorney is spending their money. Rules of Professional Conduct, Rule 4-100(B)(3), requires an attorney to "maintain complete records of all funds, securities, and other properties of a client" coming into the attorney's possession, and to render an accounting to the client. Even if a client does not request an accounting, an attorney has an ethical duty to provide one.

Practice tip: Even if you charge a flat fee, provide billing statements so that your client knows what work has been done. Provide a final detailed billing statement upon termination or completion of the representation.

Client Trust Account Violations

Clients expect their attorney to handle client funds honestly. Misappropriating client money constitutes an act of moral turpitude pursuant to Business and Professions Code Section 6106. If an attorney is required to maintain a specific amount of money in trust, and the balance in the trust account drops below that amount, the attorney has misappropriated client funds. Further, pursuant to Rules of Professional Conduct, Rule 4-100(B)(3), an attorney may not commingle personal funds in the attorney's trust account.

Practice tip: Do not use your trust account as your personal checking account. Restrict signatories on your trust account. Color code checks from different bank accounts so that you do not accidentally draft a check on your trust account. Do not keep presigned checks. Do not have a debit card linked to your trust account.

Misrepresentation

Clients do not want to be lied to. Making an affirmative misrepresentation or omission to your client constitutes an act of moral turpitude pursuant to Business and Professions Code Section 6106, and may lead to discipline by the bar.

Practice tip: Duh, don't lie!

Unauthorized Practice of Law

Clients expect the attorney they hire to be entitled to practice law. Pursuant to Business and Professions Code Sections 6068(a), 6125 and 6126, an attorney may not practice law or hold himself or herself out as entitled to practice law when not entitled to do so. Similarly, pursuant to Rules of Professional Conduct, Rule 1-300, an attorney cannot aid another in the unauthorized practice of law. The bar takes the unauthorized practice of law very seriously.

Practice tip: Check the bar website to make sure you are on active status. If you are not on active status, do not refer to yourself as an attorney or "Esq." Check your letterhead, email signature, social media profiles and website to make sure that they do not refer to you as an attorney. Be careful what tasks you assign to nonattorneys to ensure that they do not provide any type of legal advice.

Abandonment of Client

Clients expect their attorney not to abandon them. There are two main ways to properly withdraw as counsel pursuant to Rules of Professional Conduct, Rule 3-700(A). First, if an attorney is required to obtain court approval to withdraw as counsel, then the attorney must obtain that approval. If court approval is not required, then an attorney must take "reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, including giving due notice to the client, allowing time for employment of other counsel, complying with Rule 3-700(D), and complying with other applicable laws and rules."

Practice tip: Do not wait until the eve of trial to withdraw as counsel. Assist your client in finding new counsel, and promptly refund any unearned fees and the client file.

Conflicts of Interest

Clients expect their attorney to look out for their interests only. Rules of Professional Conduct, Rules 3-300 and 3-310, set forth several different conflict scenarios. One common type of conflict arises when an attorney enters into a business transaction with a client (e.g., getting paid in stock options). Another common type of conflict arises when someone other than the client pays for the attorney's representation. This is quite common in criminal defense, where the client is incarcerated. Other types of conflicts arise when an attorney represents two clients with conflicting interests, possesses confidential information obtained from a former client that is material to a current matter or has a business or personal relationship with a witness, party or the subject matter of a case.

Practice tip: Commit this phrase to memory - "informed written consent." If there is any conflict, obtain a written agreement from your client to the representation following written disclosure of the conflict.

#90

Ben Armistead


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