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.

Gerald C. Sternberg is the administrator of the Supreme Court Board of Attorneys Professional Responsibility.

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.

Wisconsin Lawyer