Wisconsin Lawyer: Ethics Accounting for Interrupted Work:

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Format: MM/DD/YYYY
    June
    01
    2016

    Ethics
    Accounting for Interrupted Work

    Technological developments make it increasingly likely that work on one client’s matter will be disrupted by communications from other clients or by nonwork distractions.

    Dean R. Dietrich

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    Question

    I am being disrupted more and more during my work day with phone calls, emails, text messages, and Facebook postings. Do the Rules of Professional Conduct contain any requirements for dealing with such interruptions?

    Answer

    Day-to-day law office practice has changed because of the many interruptions caused by electronic communications and technology-enabled accessibility. Some lawyers have two computer screens on their desk so they can move between email communications on one screen and document preparation on another screen. Many lawyers have experienced the ringing of a cell phone while talking to a client on the land-line phone or have had dinner or social events disrupted by a phone call from a client. All these technological changes create more opportunities to communicate with and be more accessible to clients but they also create ethical concerns for lawyers.

    Dean R. Dietrichcom ddietrich ruderware Dean R. Dietrich, Marquette 1977, of Ruder Ware, Wausau, is chair of the State Bar Professional Ethics Committee.

    Lawyers owe each client a duty of competence and a duty of diligence as outlined in SCR 20:1.1 and SCR 20:1.3 of the Wisconsin Rules of Professional Conduct. Under these rules, a lawyer must provide competent representation to a client and also must be diligent in providing the necessary representation. The requirements of SCR 20:1.4 regarding communication with a client also come into play because of the continued obligation to communicate with a client on a reasonable basis regarding the representation being provided. All these duties require a lawyer to be focused on the representation, but often that is difficult because of the various demands that are made on a lawyer.

    The comment to SCR 20:1.2 – Competence provides some insight:

    “Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners. It also includes adequate preparation. The required attention and preparation are determined in part by what is at stake; major litigation and complex transactions ordinarily require more extensive treatment than matters of lesser complexity and consequence.”

    Need Ethics Advice?

    As a State Bar member, you have access to informal guidance and help in resolving questions regarding Wisconsin’s Rules of Professional Conduct for Attorneys.

    Ethics Hotline: To informally discuss an ethics question, contact the State Bar ethics counsel, org tpierce wisbar Timothy Pierce or assistant ethics counsel, org akaiser wisbar Aviva Kaiser. They can be reached at (608) 229-2017 or (800) 254-9154, Monday through Friday, 9 a.m to 4 p.m.

    The comment to SCR 20:1.3 – Diligence also instructs lawyers to be careful about the amount of work he or she takes on:

    “A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.

    A lawyer’s workload must be controlled so that each matter can be handled competently.”

    While these comments provide some general guidance, the real analysis is whether the lawyer can effectively provide representation to the client in light of the various pressures from other client work and from the technology resources used to provide representation. Lawyers must exercise reasonable care in analyzing their availability and competence to handle the matters their clients present.

    Another question concerns billing for services provided by the lawyer when the lawyer is subject to continual distractions and interruptions that affect the ability of the lawyer to focus on the client matter at hand. SCR 20:1.5 provides that the fees charged by a lawyer must be reasonable under the circumstances. Questions can arise whether a lawyer is reasonable in billing for client services when the lawyer is interrupted and unable to concentrate fully on the issue raised by the client representation.

    Lawyers should develop consistent billing practices that recognize the interruptions that occur in day-to-day practice.

    Lawyers should develop consistent billing practices that recognize the interruptions that occur in day-to-day practice. Research suggests that many people work on approximately 12 projects at the same time. Lawyers might be interrupted while attempting to focus on a particular client matter and then time must be taken to refocus on the client matter when the interruption has been cleared. Lawyers might need to adjust their billing practices so that the fees charged to the client are reasonable.

    Technology allows lawyers to provide services in an efficient manner but has also caused lawyers to be faced with interruptions and frequent redirection of their focus. Lawyers must be careful that they are providing effective representation to their clients as they work through the many issues faced during a busy work day.

    Letting Clients Know How They May Communicate With the Lawyer

    The Rules of Professional Conduct (SCR 20:1.5) require lawyers to notify clients in writing of the basis or rate of the fee and costs to be charged as well as the scope of representation to be provided. Many lawyers indicate in their fee communication that they are normally available for contact from a client during regular office hours and do not respond to email communication or phone calls after office hours. Other lawyers indicate that they do not respond to text messages. Lawyers should consider adding information in their fee letter or fee agreement to clarify how clients may communicate with the lawyer, although client service often dictates a response to a client even if outside the designated work hours.




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