As an attorney, you are responsible for the conduct of any non-lawyer subordinates working in your office. In fact, Rule 5.3 requires the supervisory attorney to make reasonable efforts to “ensure that the person’s conduct is compatible with the professional obligations of the lawyer.” Consider the breadth and implications of this Rule. Without intending any disrespect to the legal secretaries and paralegals without whose help most offices would grind to a halt, secretaries and paralegals are not lawyers. If you are in a high volume practice that relies heavily on non-lawyer assistants, are you taking reasonable efforts to ensure that your non-lawyer assistants are interacting with your clients and others who come into contact with your office in a manner that is consistent with your obligations as a lawyer? Are you really? In pondering the possibilities, keep in mind your duties as a lawyer to:
Provide competent representation (Rule 1.1)
Provide diligent representation (Rule 1.3)
Communicate effectively with the client so as to allow the client to make informed and intelligent decisions regarding the representation (Rule 1.4)
Maintain confidentiality (Rule 1.6)
Be truthful in communications with others (Rule 4.2)
Clients who morph from physical beings into file folders and case lists are nothing more than gestating malpractice cases in your practice. In the matters we review for malpractice, there are a couple of elements that we see in common. Perhaps the greatest commonality in legal malpractice claims is the absence of communications from the attorney to the client.
One of our most exaggerated cases involved a supposed attorney-client relationship on a single case that spanned more than a ten years. Although the mere span of time alone is incredible, perhaps even more shocking was the complete absence of communications between the lawyer and the client – for over a decade. Instead of having a real attorney-client relationship, the client’s matter had been entrusted to a paralegal, who apparently misled both attorney and client as to the status of the matter. What began as probably an “innocent” white lie by a paralegal to a client regarding the status of the claim, turned into a cascading series of lies and deception that culminated with the fabrication of court and settlement documents (including even a settlement check). While the attorney was undoubtedly a victim of deceit by his own staff, in the end there was simply no defense for not having touched his client or his file for 10 years.
Practice Pointer: All preaching aside, if you do not have real attorney-client relationships with your clients, you should expect to be on the receiving end of a malpractice claim. Even the most experienced paralegals are not lawyers, and it is unfair to both the clients and the staff to expect your non-lawyer subordinates to operate your law practice. Touch your files frequently. Touch your clients more frequently. If your “client base” is a “case list”, the ice is thin beneath you.
THIS BLOG IS DEDICATED TO ONE OF OUR CLIENTS THAT DUE TO A SETTLEMENT WITH CONFIDENTIAL RESTRICTIONS MUST GO UNNAMED. WE WILL CALL HIM MR. DESERVING CLIENT BECAUSE HE WAS. HE IS A GREAT MAN AND A GOOD FATHER. WE WERE HONORED TO REPRESENT HIM AS A CLIENT AND A MAN – NOT AS A FILE FOLDER.
Eric Bland and Ronnie Richter