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When Zealous Representation Goes Wrong – A Look at the Rules on Litigation Ethics

Hiring an attorney is often the last resort for a person with some type of dispute with against another. Whether it be a criminal or civil matter, in a state or federal court, an administrative matter, a mediation or arbitration, attorneys are hired, and, expected to represent the best interest of their clients at all times. The ethical Rules of the legal profession demands it. However, attorneys also have conflicting duties. On one hand, although they are expected to fiercely represent their client’s interests, they also, as officers of the court, have duties to the court, adversaries, and third parties.  Attorneys are limited by the Rules of Professional Conduct which are to provide guidance on how these representations should occur. The same Rules that require zealous representation of a client’s legal issue also imposes significant, but important, limitations on the manner of that representation.  Some abusive litigation tactics include asserting non-meritorious claims, providing false evidence to the court, using improper means in gathering evidence, engaging in communications with represented parties, and unlawfully obstructing an opposing party’s access to evidence or witnesses.    This is not an exhaustive list or discussion of all of an attorney’s ethical obligations during litigation, but it serves as a primer on these Rules and provides guidance on how they should be observed.

The Preamble to the Maryland Lawyers’ Rules of Professional Conduct (hereinafter “the Rules”) make it clear that, “as advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.”[1] However, Comment 9 of the Preamble demonstrates the inherent conflict that exists in the Rules:

“In the nature of law practice, however, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interest in remaining an ethical person while earning a satisfactory living. The Maryland Lawyers’ Rules of Professional Conduct often prescribe terms for resolving such conflicts. Within the framework of these Rules, however, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules. These principles include the lawyer’s obligation zealously to protect and pursue a client’s legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system.”[2]

As the Preamble demonstrates, attorneys do not have the option of utilizing any and every tactic at their disposal in their efforts to represent their clients zealously. The “by any means necessary” mantra does not apply. Instead, attorneys have to be mindful of other ethical obligations to the court, opposing counsel, and sometimes their own interests.   Articles 3 and 4 of the Rules speak directly to the lawyer’s ability to represent her clients.

Article 3 of the Rules limits the lawyer’s behavior as an advocate. It details the expected behavior when initiating litigation[3], prosecuting or defending the matter[4], making representations to the court on behalf of clients[5], communication and dealings with opposing counsel[6], and communicating with the trier of fact[7]. These Rules are critical to maintaining the reputation of the profession as they serve to ensure to the public that as advocates for their clients, lawyers will do so in a way that is honest and trustworthy, and will not knowingly resort to misrepresentation and deceit to obtain a favorable result for their client.

Similarly, Article 4 of the Rules seeks to maintain the integrity of the profession but extends the requirement of truthful communications beyond the attorney-client relationship. Specifically, the Rules seek to guide the lawyer on appropriate behavior while advocating for their client and dealing with non-lawyers or a trier of fact. The Rules guide the lawyer on communication to third parties while representing their clients[8], communication with those who are represented by counsel[9], how to interact with unrepresented individuals[10], and requiring the lawyer to respect the rights of individuals[11]. The Rules delineated in Article 3 seek to prevent a lawyer from gaining an unfair advantage in litigation by misrepresenting the facts or bullying non-lawyers and the unrepresented. Especially by dishonest means such as fraud, deceit or misrepresentation.

It is well established and generally understood that a lawyer is expected to be truthful at all times. Comment 2 of the Preamble recognizes that “as [a] negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others.”[12] These “honest dealings” are critical to ensure that the judicial system works and the Rules identify when this honesty is not only expected, but required, in Rules 3.3, 4.1 and 4.2. Each Rule is briefly discussed below.

Under Rule 3.3, a lawyer must show candor toward the tribunal. Specifically, the Rule states that a lawyer shall not knowingly: 1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; 2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or 3) offer evidence that the lawyer knows to be false.”[13] In other words, a lawyer is prohibited from knowingly lying to the court or anyone else. And when a lawyer discovers that a communication to the court is untrue, the lawyer needs to correct the statement. Even if the statement and the correction are at odds with his client’s interests.

Rule 4.1 of the Rules prevents a lawyer from “knowingly make a false statement of material fact or law to a third person or failing “to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client[14] As a result, the Rules also bar lawyers from using misleading anyone when representing the interests of her client. Furthermore protecting the integrity of the profession, the Rule also prohibits a lawyer from assisting clients commit any crime, or scheme that involves dishonesty.

Finally, Rule 4.2 prevents a lawyer from “communicat[ing] about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter unless the lawyer has consent of the other lawyer or is authorized to do so by law or court order.”[15] The purpose of this Rule is to prevent the overzealous lawyer from improperly gaining a competitive advantage by direct communication with an unrepresented party who without the assistance of their counsel, may unknowingly, speak against their own interest.

These select Rules are designed to guide lawyers on the appropriate methods of zealous representation. Or at a minimum, these Rules can also define the appropriate boundaries. Stepping outside of these boundaries can, and, will lead to significant negative consequences for not only the lawyer but her client as well.

Rule Enforcement: Court Action, The Disciplinary Process, and Mixter

So what happens when a lawyer violates the Rules discussed above or any of the Rules while representing a client during litigation? There are two modes of enforcement:  judicial action which is addressed by the court during the course of the underlying litigation or action during the disciplinary process.

During litigation, judges have broad discretion in dealing with lawyers who behave badly. If the court finds that a lawyer has violated the Rules the court can: 1) hold the lawyer in contempt of court, 2) limit the scope of the litigation, 3) bar the admission of certain evidence, 4) shorten litigation timelines, or impose economic or other sanctions upon the offending lawyer. These can be imposed sua sponte by the court or at the request of opposing counsel.  Any of these actions should put any lawyer on notice that their behavior is inappropriate and should be discontinued.  Additionally, depending on the sanction, the action could in fact jeopardize the interest of the client the lawyer was advocating for in the first place.

A lawyer may face enforcement by both the courts and the disciplinary agency.  In February 2015, the Court of Appeals of Maryland, in the matter styled Attorney Grievance Commission of Maryland v. Mixter, found that disbarment was the appropriate sanction for an attorney who made copious knowing and intentional representations to courts, parties and witnesses, and determined that such intentional misrepresentation demonstrated a lack of truthfulness and honesty which is prejudicial to the administration of justice and brings disrepute to the legal profession.[16]  The Court held that Mixter made “hundreds of misrepresentations without remorse or attempt to rectify his transgressions and found that he violated several of the Rules.[17]  The Court found that Mixter violated several of the Article 3 and Article 4 Rules outlined above. Specifically, the Court found Mixter in violation of Rules 3.2, 3.3, 3.4, 4.1 and 4.4 in addition to Rules 5.3, 8.1, and 8.4[18] The Court found that Mixter knowingly misrepresented facts to the court and failed to correct them by repeatedly representing 1) that “out-of-state witnesses are subject to the jurisdiction of Maryland courts”, 2) that valid subpoenas were issued and properly served”, the actual dates that service was made 3) that he had “made good faith efforts to resolve discovery attempts prior to filing motions”, and 4) that opposing parties or non-party witnesses had refused to respond to his efforts”.[19]  The Court found that these violations were not isolated to one case and that they happened on dozens of occasions.  The Court reasoned that Mixter “knew that he was making misrepresentations to numerous courts, parties and witnesses” and therefore violated the Rules.

The Court found similar acts of improper and overzealous representation on the part of Mixter in their 153 page opinion.  Although disbarment is rare for a single act that leads to finding of a violation of an Article 3 or Article 4 violation, lawyers should understand that practices such as these not only bring disrepute to the legal profession, but depending on the action taking by the trial courts, could derail their client’s case and can have serious consequences. Although every lawyer wants to zealously represent their clients, it must be done in a matter that is consistent with the Rules and their obligations as an officer of the Court.

 

[1] Comment [2] to the Preamble of the Maryland Lawyers’ Rules of Professional Conduct.

[2] Comment [9] to the Preamble of the Rules.

[3] Conduct Rule 3.1 Meritorious Claims and Contentions.

[4] Rule 3.2 Expediting Litigation.

[5] Rule 3.3 Candor Toward the Tribunal.

[6] Rule 3.4 Fairness to Opposing Party and Counsel.

[7] Rule 3.5 Impartiality and Decorum of the Tribunal.

[8] Rule 4.1 Truthfulness in Statements to Others.

[9] Rule 4.2 Communication with Person Represented by Counsel.

[10] Rule 4.3 Dealing with Unrepresented Person.

[11] Rule 4.4 Respect for Rights of Third Persons.

[12] Comment [2] to the Preamble of the Rules.

[13] Rule 3.3 Candor Toward the Tribunal.

[14] Rule 4.1 Truthfulness in Statements to Others.

[15] Rule 4.2 Transactions With Persons Other Than Clients.

[16] Attorney Grievance Commission of Maryland v. Mixter, Misc. Docket AG No. 7, Sept. Term, 2013. TDR No. 15-0202-20.

[17] Id.

[18] Id.

[19] Id.

Attorney Trust Accounts and Rule 1.15

Most people know that that stealing money is wrong – both morally and legally. And likewise, attorneys know (or should know) that when acting as a fiduciary, misappropriation – the unauthorized use of funds that belong to a client or third party – is a huge no-no and a disbarrable offense. However, even with this knowledge, attorneys are often disciplined for Rule 1.15 Safekeeping of Property violations. 1

Unfortunately, trust account management is not a subject that is taught in law school. Therefore, many attorneys are learning about their fiduciary responsibilities through on-the-job training. This training may include instances of issues that may rear its ugly head in a few forms:

Reckless Behavior
Reckless or intentional misappropriation is more obvious. Some attorneys believe that “borrowing” entrusted funds – even for a short period of time – is appropriate. Or, in some instances, attorneys believe that if they have sufficient funds in their operating account or, if they have overdraft protection, that this behavior is acceptable. Simply put, it is not. This is the essence of misappropriation and is considered an act of “moral turpitude” by most disciplinary courts. It is a clear violation of Rule 1.15(a).

Overdrawn Accounts
Attorneys are experiencing overdrafts on their trust account and Maryland Business and Occupations and Professions Article Rules 16-605 and 16-610(b)(1)(B) requires financial institutions to notify Bar Counsel’s office of an overdraft of any attorney trust account. When this occurs, Bar Counsel, by statute, is authorized and required to investigate the circumstances surrounding the overdraft. Of special note is that the Maryland Business and Occupations and Professions Article Rule 16-606.1, enacted January 1, 2008, requires – among other things – attorneys to perform a monthly reconciliation of their attorney trust account and sets forth the types of records that an attorney should keep.

Negligence
Intentional or negligent misappropriation occurs when attorneys are not paying attention to their trust account and for a number of reasons, entrusted funds are invaded. Examples include:

  1. Not having enough money in the attorney trust account to account for credit card fees or banking fees;
  2. Relying on checks provided by clients that have “insufficient funds” and failing to reconcile the attorney trust account prior to writing checks against those funds;
  3. Falling victim to internet scams;
  4. Trusting employee(s) that misuse entrusted funds.

These instances can all be avoided with clear banking practices and proper oversight by the responsible attorney. Some attorneys will claim that they do not have the accounting or bookkeeping skills to manage their accounts and that is why these instances of negligent acts occur. Unfortunately, this rationale will not protect the responding attorney from disciplinary action. The Article 5 Rules set forth that an attorney is responsible for the acts of employees or agents of the lawyer. See Rule 5.3 (Responsibilities Regarding Nonlawyer Assistants). If however, an attorney feels that they cannot properly manage their trust account they should seek the assistance of a professional bookkeeper, certified public account, or office manager to assist with these accounting tasks. And even then, the attorney is still responsible for the oversight and management of the account.

Bad Record Keeping
In addition to the negligent acts described above, attorneys also find themselves violating Rule 1.15(a), which requires attorneys to maintain records of all receipts and disbursements from their attorney trust account for at least five (5) years after the transaction was made. Again, this is a rather simple requirement and violations can be avoided with a review of the relevant rules, clear banking practices, and attorney oversight.

Advanced Fees v. Flat Fees
Attorneys historically have misunderstood or misused flat fees in practice. Rule 1.15(c) requires attorneys to maintain unearned fees in an attorney trust account unless the client gives “informed consent, confirmed in writing” to an arrangement that allows the attorney to deposit funds into an operating account. Without this language, which should ideally be in the fee agreement, an attorney may be inadvertently misappropriating unearned fees while believing that they were entitled to the funds because it was characterized as a “flat fee” rather than an advanced fee.

Honest Mistakes
Things happen. But even the most diligent attorney who is familiar with the rules on attorney trust accounts can run afoul of the rules. Some common honest mistakes include:

  1. Depositing funds into the wrong account;
  2. Keeping earned funds in trust too long; and
  3. Not titling account properly as required by Maryland Business and Occupations and Professions Article Rule 16-606.2

While this list is certainly not exhaustive, hopefully it will give you an idea of some of the mistakes that can occur. However, if an attorney has been diligent with their attorney trust account management responsibilities, these mistakes should be simple to correct to bring the attorney back into the land of compliance.

Dolores Dorsainvil is a Senior Staff Attorney at the D.C. Office of Bar Counsel where she investigates, and where necessary, prosecutes cases of ethical misconduct against District of Columbia lawyers. You may read more about Ms. Dorsainvil by visiting her website at www.doloresdorsainvil.com.


1 Rule 1.15 states, “(a) A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. Funds shall be kept in a separate account maintained pursuant to Title 16, Chapter 600 of the Maryland Rules, and records shall be created and maintained in accordance with the Rules in that Chapter. Other property shall be identified specifically as such and appropriately safeguarded, and records of its receipt and distribution shall be created and maintained. Complete records of the account funds and of other property shall be kept by the lawyer and shall be preserved for a period of at least five years after the date the record was created.

(b) A lawyer may deposit the lawyer’s own funds in a client trust account only as permitted by Rule 16-607 b.

(c) Unless 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.

(d) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall deliver promptly to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall render promptly a full accounting regarding such property.

(e) When a lawyer in the course of representing a client is in possession of property in which two or more persons (one of whom may be the lawyer) claim interests, the property shall be kept separate by the lawyer until the dispute is resolved. The lawyer shall distribute promptly all portions of the property as to which the interests are not in dispute.”


2 An attorney or law firm shall maintain each attorney trust account with a title that includes the name of the attorney or law firm and that clearly designates the account as “Attorney Trust Account”, “Attorney Escrow Account”, or “Clients’ Funds Account” on all checks and deposit slips. The title shall distinguish the account from any other fiduciary account that the attorney or law firm may maintain and from any personal or business account of the attorney or law firm.

Update on the ABA's Ethics 20/20 Commission

The American Bar Association’s Commission on Ethics 20/20, the group commissioned in 2009 by then ABA President Carolyn B. Lamm, to thoroughly review the ABA Model Rules of Professional Conduct and to make necessary recommendations to revise those rules as they apply to the evolution of the legal profession as it relates to advances in technology and the globalization of the practice, has concluded its work and has made significant recommendations for revisions to the Model Rules.

The ABA Commission on Ethics 20/20 met at the ABA 2013 Mid-year meeting in Dallas, Texas in early February and the Commission successfully rallied support for sponsorship for four of its Resolutions (including support from the Young Lawyers Division for the Resolutions involving foreign lawyers).  As a result of the support as evidenced by several co-sponsorships, the ABA House of Delegates on February 11, 2013, adopted all four of the Commission’s final Resolutions. Three of those Resolutions involved a highly controversial issue – the limited practice authority for inbound foreign lawyers to practice in the United States.  The Resolutions are:

Resolution Revised 107A now amends Rule 5.5(d) of the ABA Model Rules of Professional Conduct (Unauthorized Practice of Law; Multijurisdictional Practice of Law) to permit foreign lawyers to serve as in-house counsel in the U.S., but with the added requirement that foreign lawyers not advise on U.S. law except in consultation with a U.S.-licensed lawyer;

Resolution Revised 107B now amends the ABA Model Rule for Registration of In-House Counsel to permit foreign lawyers to serve as in-house counsel in the U.S. but with added requirements ;

Resolution 107C now amends the ABA Model Rule on Pro Hac Vice Admission to provide judges with guidance about whether to grant limited and temporary practice authority to foreign lawyers to appear in U.S. courts; and

Resolution 107D amends the Comment to ABA Model Rule 8.5 to permit lawyers and clients to agree which conflict of interest rules govern the representation.

Congratulations to the Commission for three years of hard work which resulted in phenomenal changes to the rules which governs our conduct. The Commission, in its earlier Resolutions to the House which are now adopted as of August 2012, recommended several changes as they relate to technology and now has addressed the globalization of the practice which will now allow for lawyers to provide more services to clients whose needs may not be limited to our jurisdictional borders.

How does this effect Maryland? We shall soon see if our court adopts similar provisions in the Maryland Lawyers’ Rule of Professional Conduct.

Read more about the work of the Commission on the ABA website.

Dolores Dorsainvil is a Senior Staff Attorney at the Office of Bar Counsel and is an Adjunct Professor of Law at American University’s Washington College of Law where she teaches Legal Ethics.

Retainer Agreements and Rule 1.5(b)

The most important aspect of the attorney-client relationship is the contract between the parties. If you have not recently taken the time to review your firm’s retainer agreement, now is a great time to make sure you are in compliance with the ethical rules.  Rule 1.5(b) of the Maryland Lawyers’ Rules of Professional Conduct (hereinafter “the Rules”) sets forth the ethical requirements for retainer agreements and 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.”  Although the Rules do not require that a standard (non-contingent) retainer agreement be in writing, it is a good practice for an attorney to memorialize such an agreement so that in the event that a dispute arises, the parties can review the document.

There are two requirements under Rule 1.5(b). First, the retainer agreement must clearly state, “the basis or the rate of fee,” or in other words, how the attorney will be compensated for their legal services.    Therefore, whether the fee is contingent[1] on the outcome of a recovery or settlement, an advanced fee for legal work to be performed in the future,[2] a flat fee, an hourly fee that will be billed to the client as work is performed, a statutory fee, or a combination of these fees (also known as “hybrid retainers”), it is important for the attorney to set forth and explain to the client how they expect to be compensated regardless of the type of retainer agreement.

Second, the retainer agreement should clearly state, “the scope of the representation,” or stated another way, the legal services that the attorney has agreed to perform.  When describing what the scope of the representation is, an attorney should provide as much detail as possible and, in some instances, it may be appropriate to include the services that the attorney will not provide under the retainer agreement. An attorney may want to include language that should further legal services be required, the parties, can either modify the current retainer agreement or enter into another retainer agreement altogether at an additional cost to the client.  For example, if an attorney is retained in a criminal matter and represents a client at trial, the attorney should state in the retainer agreement that the representation does not include any appellate work, should the matter present such a necessity. Having such detail in the retainer agreement will help eliminate any confusion in the event that the client is convicted and desires an appeal.

Lastly, Rule 1.5(b) requires that the attorney inform the client of any expenses related to the representation for which the client will be responsible.  By doing so eliminates any undue surprise on the part of the client once his or her matter is resolved.

Having a good iron-clad written retainer agreement serves as source of protection not only for the client but the attorney as well, especially in the event that the client files either a grievance with Bar Counsel’s office, or a fee dispute.

For more information on this topic and more on starting a solo practice, listen to this Podcast by Anthony I. Butler, Esquire. http://www.yls.org/sec_comm/sections/yls/podcasts.asp

Also check out the new MSBA App for iPhone, Android and Blackberry, which keeps theMaryland Professional Code of Conduct right at your fingertips!


[1] Contingency fee agreements in Maryland must be in writing. (emphasis added).  Rule 1.5(c) states, “[a] fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law.  A contingent fee agreement shall be in a writing signed by the client and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated.  The agreement must clearly notify the client of any expenses for which the client will be responsible whether or not the client is the prevailing party.  Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter, and, if there is a recovery, showing the remittance to the client and the method of its determination.”

[2]  Maryland takes the default position that advanced fees are considered unearned upon receipt and are property of the client unless the client agrees to a different arrangement.  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.”

What is Good Communication?

One of the most common grievances that clients lodge against attorneys is an attorney’s failure to adequately communicate with them.  While the Maryland Lawyers’ Rules of Professional Conduct[1] does not define the term “adequate communication,” attorneys should take the time to determine what that term means for their practice as communication is the key to establishing and maintaining a good attorney-client relationship. As such, it is a good idea to implement an office practice that is communicated to the client early in the representation. For example, it is a good office practice to inform a new client that telephone calls 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 their clients a carbon copy of all pleadings and correspondence in the client’s matter as way to keep them informed of the status of a litigation.

In our technology driven world, many attorneys communicate with clients in a multitude of ways: telephone calls, letters, e-mail, instant messaging, Skype and the like.  However, the most effective and recommended way to communicate with a client is by way of a carefully drafted letter.  It is perhaps the best method to convey important information to the client with regard to their legal matter, especially if it requires the client to make a decision about a recommended course of action.  This is because communications made by telephone or e-mail can sometimes be made with haste and may be later forgotten or misconstrued by the client. However, creating a well written letter (copied to the file) that requires the attorney to reflect on the legal advice or information given to the client, not only benefits the client, but also, serves as a level of protection for the attorney as well in the event that a disagreement about the information conveyed or misunderstanding between the parties should occur. Written communications should be made to the client throughout the course of the representation. The representation should start with the initial engagement letter/fee agreement that sets forth the scope of the representation and the rate or basis of the fee.  If there are important developments in a client’s matter (settlement offer, upcoming court date, expert witness fees needed) or some other important information that the attorney needs to share with the client (change in office address or contact information, attorney on extended vacation, attorney closing their practice), it should always be in writing. The representation should also end with a termination/closing letter notifying the client that the matter is either resolved or that the attorney is terminating the relationship.

An attorney that takes the time to develop a good office procedure with regard to how he or she communicates with their clients will not only make for a more efficient practice but will also ensure that the attorney does not run afoul of the Rules of Professional Conduct.

The Lawyers’ Rules of Professional Conduct are now available via new mobile apps  for the iPhone, iPad, Android and Blackberry, a project of the Young Lawyers’ Section.


[1] Maryland Lawyers’ Rules of Professional Conduct  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.

Effective Client Screening

By Dolores Dorsainvil

Running a successful practice includes the ability to effectively screen prospective clients. In this tough economy, lawyers need to establish a practice policy by which they are able to make appropriate screening decisions about the clients they wish to represent. Doing so would assist an attorney in not feeling the need to accept any and every legal matter that should come through the door; and, it would also assist an attorney in avoiding possible ethical pitfalls and/or disciplinary complaints.

The initial meeting with the prospective client is an important time to assess several things. First, an attorney should determine early on whether he or she is qualified to handle the matter. (If an attorney does not feel competent enough to handle such a matter, than it is advisable for the attorney to send the prospective client a writing indicating so in the form of a non-engagement letter.) Second, the meeting provides the attorney an opportunity to assess whether the client will be a high risk or difficult client. Third, the attorney should determine what the prospective client’s expectations are and also determine whether the attorney can reasonably satisfy those expectations. After making these assessments and advising the client on the applicable law and/or the legal process, an attorney should inform the client on their fee basis and the attorney should consider whether the client can meet the attorney’s financial expectations.

If an attorney is able to complete these steps without incident, the decision to undertake such a representation should be a fairly easy one. However, there are some prospective clients that may cause an attorney some concern. When faced with these warning signs, an attorney may wish to decline the representation:

  • 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
  • Client who makes you feel uncomfortable

While this list is certainly not exhaustive, an attorney should recognize certain negative gut feelings that they may have about a prospective client. Doing so will help an attorney make the critical judgment call on whether, or not, to accept the representation. Developing an effective client screening process means an attorney will spend less time defending against bar complaints, malpractice actions, and fee disputes, and can spend more time, in the long run, focusing on such things as client development, marketing, firm growth, and professional development.

For more information on this topic, check out this Podcast:  Dolores Dorsainvil on Law Practice Management.

Dolores discusses the importance of law practice management, effective client screening, retainer agreements and how to handle attorney trust accounts. She also explains what attorneys should do if disputes arise with clients and where to turn for assistance.


For more information, check out this article on Choosing Clients Wisely by Pat Yevics, MSBA LOMA director. Another helpful link from MSBA LOMA is this sample Client Intake Form.

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