Communication Tips You Didn’t Hear In Law School
Spare Yourself Headaches In Your Law Practice by Following these Helpful Communication Tips:
Hard to believe that around this time 20 years ago I was finishing up law school at Mercer University School of Law and would soon be prepping for the Georgia bar exam. In law school, they hone our communication skills, both written and oral. From legal research and writing to advocacy, Law Review to Moot Court, we are trained to communicate and advocate our client's position whether that be in complaints and briefs, or at hearings and oral arguments. But what about after law school when you are in private practice with actual clients to deal with? Here are a few tips about communication from my observations over the last 19 years in the lawyers’ professional liability insurance world. Proper communication will help you avoid claims of malpractice, fee disputes and bar grievances.
Engagement Agreements = Clear Communication from the Start
You have cleared that conflicts check and decide to take on the representation, but what do you do next to avoid trouble down the road? This is the time you will want to clearly communicate with the client exactly what the scope of your services will be. After the consult with the client, you should reduce the agreed upon services to writing in an engagement agreement, signed off by the client. So, if you have agreed to represent the client in their auto accident case, it is clear that you are not representing them in that real estate dispute they have with their neighbor. This should be done for each representation (including a new agreement should you decide to take on that real estate dispute). Should the client later allege that you did not do anything on that real estate dispute, you have the signed agreement showing that the real estate dispute was not an agreed upon service.
You will also want to have signed agreements even if the client is a friend or relative. I recall at a previous carrier I was with, an insured agreed to represent a friend who wanted to invest in an international real estate development. Since the client was a good friend, the insured did not have him sign an engagement agreement. The insured also didn't really keep a file. The real estate deal went south, the client lost his investment, and he turned on his friend, the insured. Because there was no retainer agreement and no file, the carrier had nothing to defend from - it was down to the client's word over the insured's word. The claim settled in the low seven figures.
At ALPS we have a provision in our Premier policy that if a claim arises and you started out right by having your client sign an engagement agreement, your deductible will be reduced by 50% on that claim. You can see why we put this incentive in the policy. An engagement agreement along with a well-documented file gives us something to defend from.
You also will want to spell out the costs of your services and how your fees will be billed out in the engagement agreement. Then stay on top of the billing. Far too often, I've seen the lawyer allowing the fees mount up, not staying on top of the client invoicing which then results in the client being sent to collections or the lawyer suing the client for the fees. In this scenario, you can count on a counter-claim for malpractice from the client.
Communicate Throughout the Representation
Recently I had a discussion with a staff member in the Office of General Counsel at the State Bar of Georgia. She is involved with the intake of bar grievances, and over the years, she estimates that more than 50% of them could have been headed off had the lawyer simply communicated with the client. ABA Model Rules of Professional Conduct Rule 1.4 (a)(3) says a lawyer shall keep the client reasonably informed about the status of the matter; and shall (4) promptly comply with reasonable requests for information. To avoid trouble, set the expectation around communication with the client at the beginning of the representation. Explain to the client when and how you will keep them updated on their case. Let them know that while you will be diligently working on their case, there will be times with no activity. While you are juggling multiple cases, your client’s case is likely the most important thing going on in their life. If they call or email, return their call or reply to the email within a reasonable amount of time. Simply by communicating with your client, you will help you avoid the risk of a bar grievance or malpractice claim.
What We Have Here is a Failure to Communicate
Do you recall those notices in the application for lawyers' professional liability insurance when shopping your coverage? One of utmost importance advises that if you are aware of a claim or potential claim, you need to notify your current carrier of the known matter, otherwise coverage may be jeopardized. Failure to provide notice to your current carrier means no coverage once the policy ends. And the new carrier is not going to pick up coverage for the matter because you were aware of it before their policy incepted.
Similarly, do you know what the conditions of your policy say when it comes to providing notice to your carrier when you become aware of a claim or potential claim during the pendency of the policy period? Most say you must report the claim or potential claim immediately or as soon as reasonably possible to the carrier. Far too many times, I have seen lawyers thinking they can fix the problem, then failing to report the matter to their carrier. The matter blows up on them, and now they are in a new policy period, or they have switched carriers. Because lawyers' professional liability insurance is written on the claims-made and reported form, these lawyers find themselves without coverage or in a coverage dispute with the carrier. This could have been avoided simply by providing timely notice to the carrier. Let me add that if you are hesitant to report matters to your carrier for fear of what it will do to your rates or your future insurability, maybe you should rethink your carrier. Not all carriers are created equal. And price alone should not be the determining factor when selecting a carrier.
Feeling Overwhelmed? Talk to Someone.
The legal profession is sadly known for its high rates of depression, anxiety and substance abuse. If you find yourself overwhelmed and battling these, help is available. The Lawyer Assistance Program at the State Bar of Georgia offers a wide range of services to help you deal with stress, depression, substance abuse, etc. The confidential hotline is 800-327-9631. As a member of the Bar, you are entitled to 6 pre-paid clinical sessions per year, and you can connect with a counselor virtually. If you’re not a member of the State Bar of Georgia, your state bar more than likely has a Lawyer Assistance Program and is committed to taking care of members in need. ALPS is also committed to well-being in the legal profession and has dedicated resources available about attorney wellness. You can find those here: ALPS Attorney Wellness Resources
Authored by: Ben Parks, Esq., Business Development Representative
Ben Parks is a graduate of Mercer University and Mercer University School of Law. He has been a member of the State Bar of Georgia since 2003. After a stint in private practice, he began his career helping lawyers protect their practices against allegations of malpractice and bar complaints. He started at the former Georgia bar related insurance company (Georgia Lawyers Insurance Company) and throughout his career, he has served in various underwriting, claims and business development roles. He is currently the Lead Georgia Representative at ALPS, the nation’s largest direct writer of lawyer’ malpractice insurance.