In the December 6, 2013 edition of The Daily Record, Kristi Tousignant summarizes the disciplinary rulings from the Maryland Court of Appeals (COA) in 2013. Tousignant notes that the COA disbarred 37 attorneys in fiscal year 2013 with a total of 86 sanctioned attorneys. Although this represents a decline from the prior fiscal year, the raw number of disbarments is still concerning. So, in this installment of The Gavel we will reiterate some helpful tips on how to avoid common practice errors that often lead to client complaints and ultimately lead to sanctions by the Court.
As I discussed in the blog post from October of 2011, one of the most common issues filed against attorneys involve poor communication. Although the Maryland Lawyers’ Rules of Professional Conduct does not specifically define what good communication is, attorneys should review the language of Rule 1.4 and adopt and implement office policies and procedures that are communicated to the client early in the representation so that clients are aware of them. At the outset of any new attorney-client relationship, attorneys should make every effort to manage client expectations. Specifically, as a good practice, attorneys should let clients know that telephone calls and e-mail communications are returned within a certain time period (e.g., a 24 hour period, or 1-2 business days).
Another good office practice that some attorneys implement is to send copy clients on all pleadings and correspondence received from or sent by any third party. This not only keeps the client informed of the status of their matter, but also, allows them to be involved with every stage of the representation.
As reported by Tousignant in the same Daily Record article, approximately 73% (27 out of 37) of the disbarments in fiscal year 2013 were due to the failure of those attorneys to competently and diligently represent their clients. Attorneys, especially young lawyers, can find themselves overwhelmed with managing their practice and personal lives. To avoid these kinds of ethical complaints, attorneys should consider the following:
1) Declining cases when an attorney does not have the resources or knowledge to handle a client matter. Although an attorney may be interested in a new practice area or need the business, “dabbling” can often lead to a mishandled case. Dabbling is where an attorney accepts a legal matter outside of their practice area and level of expertise. So for instance, a dabbler may take on a representation as a favor to a family member or friend in a personal injury matter, and while they may know the statute of limitations for personal injury cases, they may not be aware of other pertinent law such as notice requirements that would need to be given to governmental entities or the time period for such a requirement. Instead of dabbling, an attorney should consider associating with a more experienced attorney (with the client’s consent, of course) or seek out a mentor who is willing to guide them through the matter.
2) Take advantage of Continuing Legal Education (CLE) offerings. There is no substitute for staying current on changes in the law that affect one’s practice areas. Although not yet required in Maryland, CLE courses can help attorneys increase their knowledge base, improved their practice management, and better serve their clients.
3) Lawyers should be diligent with client screening policies. As I wrote in the September 2011 blog post, an attorney may want to decline representation of the following clients:
- Client who is changing lawyers;
- Client who has had several previous lawyers on the same matter;
- Client whose expectations exceed the evaluation of the case;
- Client who has unreasonable motives or a hidden agenda;
- Client who has performed considerable amount of research on the case;
- Client who refuses to pay the required consultation fee or retainer;
- Client who you cannot empathize with; and
- Client who makes you feel uncomfortable.
3. Trust Account Management
A sure fire way to be subject to discipline is to mishandle client funds. The only available sanction for intentional and reckless misappropriation, or the unauthorized use of entrusted funds, is disbarment. The sanction available for commingling an attorney’s funds with client funds is a suspension. Complaints, however, can be easily avoided with a few diligent practice policies:
First, an attorney should make sure that they use written fee agreements. Although Rule 1.5(b) does not make a written fee agreement mandatory, it is a wise practice. An attorney’s agreement should, at a minimum, detail what services will be provided, the fee for those services, and how the attorney expects to be paid for those services. If an attorney is receiving client funds in advance (a retainer) those funds must be deposited into an escrow account unless the attorney has received the client’s informed consent that the client is willing to waive entrustment of those funds. See Rule 1.15 (Safekeeping Property). Having these details spelled out in a written agreement with the client will help to establish client expectations about the nature of the representation and how payments will be applied.
Once an attorney has an executed fee agreement with the client and has accepted the client’s first payment, the attorney should maintain the status of their account with some type of accounting or practice management software. This will allow the attorney to properly monitor the work performed for the client, all client payments, and all disbursements made from their account. Additionally, the software will provide the reporting necessary for the client statements and in a worst case scenario, requests from the office of bar counsel.
An additional requirement of the rules often overlooked by attorneys is the process of reconciling the escrow account on a monthly basis. When done properly, this process will alert an attorney to any irregularities with regard to the escrow/trust account that may initiate a bar counsel investigation.
Hopefully following these tips will assist you in maintaining an ethical practice and keep you from becoming subject to a bar counsel complaint.
 July 1, 2012 – June 30, 2013
 Rule 1.4 (Communication) states:
“(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(f), is required by these Rules;
(2) keep the client reasonably informed about the status of the matter;
(3) promptly comply with reasonable requests for information; and
(4) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Maryland Lawyers’ Rules of Professional Conduct or other law.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”
 Rule 1.5(b) states, “[t]he scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client.”
 Rule 1.15(c) states, “[u]nless the client gives informed consent, confirmed in writing, to a different arrangement, a lawyer shall deposit legal fees and expenses that have been paid in advance into a client trust account and may withdraw those funds for the lawyer’s own benefit only as fees are earned or expenses incurred.”