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Vol. 73, No. 12, December 2000
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When You're a Laywer, All of Your Advice is Legal Advice
Good Deeds Can Be Costly
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Ann Massie Nelson is communications director at Wisconsin Lawyers
Mutual Insurance Co. Past risk management columns appear on WILMIC's Web
site, www.wilmic.com, with permission of the State Bar of
Wisconsin. |
LAWYERS, BY NATURE, ARE problem solvers. Give
them a sad story and their reflex response is to try to fix the problem
- sometimes even before they are asked.
"Lawyers have access to solutions that the general public doesn't
have. Often we feel it is incumbent upon us to go out of our way to make
life better," says Sally E. Anderson, claims counsel at Wisconsin
Lawyers Mutual Insurance Co. (WILMIC).
One shining moment of generosity can quickly tarnish, however, when
you discover the legal question falls outside your area of expertise,
devours time you can't afford, jeopardizes a personal or business
relationship, or slips through your safety net of office procedures
because it wasn't "real" work.
What started as an act of kindness then becomes a guilt-filled
burden. You procrastinate, reasoning that paying clients should come
first. You delegate the task to an associate but fail to follow up.
Finally, you're too embarrassed to call the intended recipient of your
favor. The next call you get is from the client's new lawyer or the
Office of Lawyer Regulation.
"Sometimes, our hearts are bigger than our pocketbooks or abilities,"
Anderson says.
Courtesy Leads to Malpractice
Two recent claims illustrate how good intentions can go awry.
- A man recommended that his friend talk with his nephew, a lawyer,
about a large personal injury case. The lawyer/nephew, knowing he could
not bankroll the experts needed to try the case, volunteered to attempt
a settlement. When the case did not settle and no law firm was willing
to take the referral, the lawyer filed the lawsuit but improperly served
the papers. A poor personal injury case became a good legal malpractice
claim.
- A couple who were longtime friends of a lawyer dropped by the firm
just as the lawyer was leaving for a funeral. The lawyer forgot to make
a note about the slip-and-fall accident they discussed. The statute of
limitations expired without action and the couple made a claim against
the lawyer for malpractice.
"The clients probably never would have made it past the front door if
the lawyer hadn't known them," Anderson notes.
What's a Nice Lawyer to Do?
Saying "no" or "I don't know" to people who need help and trust you
is very difficult, to say the least. In their eyes, your elite status as
a lawyer qualifies you to speak on all aspects of the law.
To respectfully decline requests for favors or work outside your area
of practice, Anderson recommends the following:
- Prepare a script for responding to out-of-the-blue requests for
information or advice. A mental script is particularly helpful for
situations that arise outside of the office, when you are least prepared
to respond. Your script might sound something like this:
"That's an interesting problem. I don't come across that in my practice.
I suggest you call a lawyer who is experienced in that area of law." Or,
"I would like to help you, but I am not comfortable giving you advice
without knowing all the facts. Let's schedule a time to meet in my
office so I can give your question the attention it deserves."
- Make sure staff members respond to these calls like any new client
or new matter. Ask for enough information to check for conflicts of
interest and schedule an appointment during office hours.
- Work with staff members to develop a screening procedure and
standard response for cold callers who would be better served elsewhere.
"Staff can respond to callers in a manner that is polite and welcoming,
but protects the lawyer from having to say no," Anderson says.
- Refer people elsewhere. One way to help callers without stretching
your own resources is to refer them to the State Bar's Lawyer Referral
& Information Service at (800) 362-9082 (see accompanying sidebar)
or an advocacy group that offers free or low-cost legal
representation.
- Be prepared to tell someone, "I don't know if a lawyer is the right
person to answer that question." Some problems simply can't be solved by
the legal system.
From the Goodness of Your Heart
If you choose to do someone a favor, acknowledge that decision to
yourself. Give the same care and attention to these clients as you do
other clients. For example:
- Check for conflicts of interest. The last thing you want is to hear
the whole confidential story before you discover you have just
disqualified yourself or your firm from representing another client.
- Open a client file. "The pressure in law firms to bring in billable
hours is a major reason why lawyers don't open a file. They don't want
their partners to know they are doing someone a favor," Anderson
notes.
- Enter statutes of limitations and other time constraints in your
calendar and tickler system. Schedule time for doing the work well in
advance of the deadline.
- Document your work with notes to the file, copies of documents
prepared and received, and all correspondence.
- Record your work in your timekeeping system, even if you don't send
a bill. Time records document the date and nature of the service. Next
time you are asked for a similar favor, you can estimate the commitment
involved.
- Recognize that even paying clients don't always heed your advice.
While it would be awkward to write a letter documenting your counsel and
the beneficiary's decision not to follow it, there may be situations
where such a letter is called for.
- Remember, people tend to judge the value of a product or service by
how much they paid for it. Other folks find it difficult to admit they
need a helping hand. Try to remain gracious, even when people don't show
the gratitude you might expect.
Bar's Lawyer Referral &
Information Service helps consumers find answers to their legal
questions
To respectfully decline requests for legal
favors or work outside your area of practice, consider referring people
to the State Bar's Lawyer Referral & Information Service (LRIS).
Through LRIS, consumers can speak to a legal assistant who's
experienced in analyzing potential legal problems and finding the best
source of help, locate an LRIS-registered lawyer in their geographic
area who practices in the area of law they need, or determine whether
they qualify to use one of Wisconsin's federally funded legal service
agencies.
One call to LRIS puts consumers in touch with
three types of services:
Lawyer Referral. Maybe consumers think
they need an attorney, but want to speak to someone first. When it's
appropriate, LRIS can refer consumers to a lawyer in their geographic
area or elsewhere in Wisconsin who can deal with their legal situation.
The first half-hour consultation will cost no more than $20.
Community Referrals. If a lawyer isn't
needed, LRIS can refer callers to another legal service organization,
government agency, or community resource that might be able to help with
their legal concern.
Lawyer Hotline. Maybe all the caller
needs is general legal information or an answer to a simple legal
question, such as how to file in small claims court. LRIS can make an
appointment for a lawyer to call back the consumer, free of charge,
within a few days to briefly discuss his or her question.
Consumers can contact LRIS legal assistants at (800) 362-9082, in
Dane County at (608) 257-4666. The service is open Monday through
Thursday from 7:30 a.m. to 6 p.m. and Friday, 7:30 a.m. to 5 p.m. CST.
Or visit LRIS online, 24 hours a day, at www.legalexplorer.com/lawyer/lawyer.asp.
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