Vol. 70, No. 4, April
1997
Attorney Discipline:
Pointers for Avoiding Grievances
By Gerald C. Sternberg
Editor's Note: Mr. Sternberg expresses his personal views and not
those of the BAPR board.
Follow these procedures to reduce the likelihood of having a grievance
filed against you and to increase your client satisfaction.
SCR 20:1.1 - Competence. Do not handle any legal matter if you
are not competent in that area of the law, even if you need the work, unless
you work in the representation with another lawyer who is competent to handle
it.
SCR 20:1.2 - Scope of representation. Whether in civil or criminal
litigation, do not ever settle a case for a client without the client's
decision to settle it. Settlement terms must be consistent with the client's
instructions.
SCR 20:1.3 - Diligence. Have an effective tickler system so that
each matter is calendared in your diary and also in your secretary's diary.
The tickler should be at least a few days prior to any hearing so that you
are aware of the due date for any work on the case and have time to do it.
Avoid doing tasks at the last minute. Maintain a workable caseload; do not
spread yourself too thin. In emergencies, make certain to apply for extensions.
Do not schedule two matters for the same time.
SCR 20:1.4(a) - Communication. Communicate regularly with your
clients; that is, answer phone calls and letters promptly. Keep the client
informed of developments in his or her case. Explain a legal matter sufficiently
so the client can make informed decisions.
SCR 20:1.5 - Fees. At the beginning of the representation, explain
to the client how you will charge him or her. There are three basic ways
to charge: by the hour, by a fixed fee or by a contingent fee. If the fee
is contingent, the fee agreement must be in writing. To avoid fee disputes,
use a written fee agreement regardless of the billing method. If you are
charging by the hour, keep meaningful time records to substantiate your
fee and enter your time into your billing system immediately to maintain
a current running record. This is much more accurate and effective than
trying to go back and reconstruct your time. Send complete and detailed
billing statements to your clients.
If you intend to apply trust funds to your fees, always obtain the client's
permission to do so, and do not take those funds prior to having earned
them. In most cases, monies given to you are advances that should be placed
in your trust account until earned. If you intend to consider a retainer
nonrefundable (for example, in representing a defendant in a criminal case),
have a written agreement, or at the very least a firm verbal agreement,
with the client to that effect. Otherwise, you should consider a deposit
by a client to be an advance only. If there is a dispute with a client over
a portion or all of your legal fee, keep the disputed portion in the client
trust account pending the dispute's resolution.
In order to have a lien for your attorney fee in a case, Wisconsin Statute
sections 757.36 and 757.37 require that the lien be referred to in your
client's fee agreement.
You cannot charge for probate work solely on the basis of a percentage
of the estate's value. See Wis. Stat. 851.40(2)(3).
If a client disputes your bill, consider suggesting fee arbitration as
an inexpensive and fair method to resolve the dispute. Be entirely straightforward
and communicative with the client about your fees. Don't put the client
off.
SCR 20:1.6 - Confidentiality. Do not discuss client matters outside
the office. Instruct office staff to keep client information confidential.
Do not send a client file to another lawyer without the client's consent.
The confidentiality rule not only protects a confidence or secret but also
protects all information relating to the representation. The rare circumstance
in which you are required to reveal otherwise confidential information is
to prevent the client from committing a criminal or fraudulent act likely
to result in death, substantial bodily harm or in substantial injury to
another's financial interest or property. You may reveal information to
the extent you believe reasonably necessary to rectify the consequences
of a client's criminal or fraudulent act in the furtherance of which your
services had been used. You may also reveal information to the extent you
reasonably believe necessary to establish a claim or defense on your behalf
in a controversy between you and a client.
SCR 20:1.7 - Conflict of interest - general rule. Have a conflict
of interest avoidance system in place in your office, either by computer,
by a manual system in which client names are screened or by virtue of staff
meetings. As a firm, do not accept cases involving direct conflicts. Do
not accept cases involving potential conflicts of interest without full
disclosure to both parties and written consent by both. Do not stay on a
case when a conflict of interest develops, whether the conflict involves
two clients with adverse interests or involves a conflict between your own
personal interest and the client's interest. You cannot represent a client
against another existing client, regardless of whether the matters are unrelated,
without both clients' written permission and your determination that each
client's interest is fully protected.
SCR 20:1.8 - Conflict of interest - prohibited transactions. Do
not enter into business transactions with a client unless the terms are
entirely fair and reasonable, the client has reasonable opportunity to get
the advice of independent counsel in the transaction, and the client consents
to the transaction in writing. Generally, do not borrow money from clients
and do not loan money to clients, except for court costs and litigation
expenses.
SCR 20:1.15 - Safekeeping property. Place client funds, other
than fees paid as nonrefundable retainers, into a client trust account.
Client funds that are nominal in amount or are to be deposited for a short
term should be placed in an IOLTA trust account, with interest accrued thereon
to go to the Wisconsin Trust Account Foundation. Funds that are to be kept
for longer terms or that are not nominal in amount should be placed into
separate interest-bearing trust accounts or income-generating investments,
the interest on which shall be paid to the client. Complete records of trust
account funds must be preserved at least six years after terminating the
representation. Required trust account records are described in detail in
SCR 20:1.15(e). Do not draw a trust account check on funds that have not
cleared the banking system nor been received into the account.
SCR 20:1.16 - Terminating representation. If you are discharged,
you cannot keep the client's file to gain leverage in getting your fee paid,
so long as the case is pending. All client property must be returned to
the client at the time of discharge. You may only keep the original client
file if the legal matter has been concluded. Otherwise, the client is unfairly
prejudiced by not having access to the file. The simple solution to document
one's work on the case is to copy the file and return the original to the
client upon discharge. Do not withdraw or threaten to withdraw soon before
a trial or an essential stage in litigation, and do not withdraw from a
matter in litigation without the court's permission.
SCR 20:3.5 - Impartiality and decorum of the tribunal. Except
for scheduling purposes, you may not engage in any ex parte communications
with a judge or other tribunal. Even when the communication is for scheduling
purposes, you must promptly notify the adversary or unrepresented party
of the communication.
SCR 20:4.2 - Communication with person represented by counsel.
Do not contact a party represented by another lawyer without the other lawyer's
permission.
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Gerald C. Sternberg is the administrator of the Supreme Court Board
of Attorneys Professional Responsibility.
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SCR 20:5.1-5.3 - Supervisory responsibilities. Ensure that lawyers
and nonlawyers working for you are conforming to the rules. If you become
aware of misconduct by a subordinate, take corrective action as soon as
possible.
SCR 20:7.3 - Direct mail advertisements. Direct mail advertisements
to persons known to be in need of legal services must be filed with BAPR.
They should be conspicuously labeled with the word "ADVERTISEMENT"
(usually in bold type and separated from the letter's text). Do not write
to a person soliciting a representation involving the death of a loved one
prior to the loved one's funeral. Do not meet with prospective clients in
a hospital. Do no in-person or telephone solicitation.
Notary. Do not notarize a signature unless the person whose signature
is to be notarized is personally present before you as the notary. |