The Problem With Taking Practice Management Shortcuts
When traveling on business, it can be so easy to grab a burger and fries at a local drive-thru verses taking the time to find a place where I can stop and enjoy a far healthier meal. Of course, there’s nothing wrong with a burger and fries now and again. It just shouldn’t become a regular habit and therein lies the problem. I don’t want to ever allow the eating shortcut of fast food to become my norm because that wouldn’t bode well for my overall health long-term.
The point I am trying to make is this. Perceived time demands and busy schedules can enable rationalizations that too readily allow one to say this or that time saving shortcut is justified. As lawyers, if we fail to periodically remind ourselves of the importance of thorough follow-through, such shortcuts may eventually become engrained bad habits. Here again, that wouldn’t bode well for the overall risk management health of your practice long-term.
With all this in mind, try not to take any shortcuts when doing the following.
1) Documenting Scope of Representation – Every file you are responsible for should contain written documentation of the scope of representation. This doesn’t mean a formal contract is called for every time a long-term client brings in a new matter. There’s nothing wrong with documenting scope in a short “Thanks for stopping by” letter, a confirming email, or a more formal letter of clarification. One of several reasons for doing so is you don’t want to allow room for assumptions. Set forth what you are going to do and, particularly with limited scope representation, what you’re not going to do. Recognize that memories can be short, including your own; and know that if a word-against-word dispute ever arises in the context of a malpractice claim and the issue is what was your scope, it’s going to be an uphill battle.
2) Keeping Your Clients Informed – You are in your clients’ employ and the matters you are handling are their matters, not yours. This means all calls should be promptly returned, requests for information timely responded to, copies of documents forwarded without delay, and detailed bills sent out on a regular basis. In addition, clients should be informed of all court dates, all filings, and all offers to settle or mediate. Clients should be informed of their rights, especially in criminal matters. Any actual or potential conflict issue’s ramifications should be fully explained before anyone agrees to hire you. Client permission should be obtained for granting extensions of time to adverse parties, stipulating evidence or testimony, agreeing to continuances, making and/or rejecting settlement offers, and the like. Clients should be told when their matter has concluded and what, if anything, they must yet do to bring their matter to its full completion. And whether through inability or oversight, and after discussing the issue with your malpractice carrier, clients do need to be informed of a failure to act on their matter or that their case has been dismissed. This is the level of contact and kind of information that clients reasonably expect from their attorney.
3) Closing a File – Always document the conclusion of representation, if for no other reason than to cut off any unintended reliance. You don’t want to create an opportunity for clients to assume you will continue to look out for their legal interests going forward if that’s not your intent. Another reason for doing so is the doctrine of continuous representation, which can result in the tolling of the statute of limitations in malpractice cases. With repeat clients, a letter of closure in the form of a thank you note can be an effective way to start the running of the SOL clock.
4) Maintaining Oversight of Your IOLTA Account – The oversight of this account should never be completely turned over to a non-attorney. At a minimum, you should review the monthly client trust fund account reconciliation report as a way to help catch any inadvertent payment errors and confirm that all funds on deposit for each client are accounted for. Consider also reviewing the monthly bank statement and taking a look at the signatures on all checks that have cleared during the period the bank statement covers. You want to confirm the authenticity of the signatures on all checks and make certain you understand what every debit on the statement is about.
5) Supervising Staff – By way of example, consider a busy real estate practice where an attorney has assigned one staff member the following: all title search responsibilities, preparation of all settlement packages, and additional related administrative tasks. Consider also that this one staff member is already trying to manage an excessive caseload. Under these circumstances, it is not hard to imagine a mistake occurring, such as listing and paying the wrong party as the mortgagee. This kind of mistake can happen when an attorney is working under erroneous assumptions. The attorney may be assuming that the staff member can manage a heavy caseload, is properly trained, and would speak up if there’s ever a problem. But what if the reality is this person is underwater, isn’t properly trained, and is afraid to speak up?
As a supervisor, it’s your responsibility to see that all staff have the necessary tools and training and are provided an appropriate work environment and sufficient time in order to allow them to thoroughly and competently carry out their assigned duties. Remember that Rule 5.3 of the Rules of Professional Conduct makes you responsible for ensuring that all staff are competent and in compliance with all the RPCs. If a staff person makes a mistake, you are going to be the one held responsible for the fallout.
6) Calendaring – Calendaring errors remain a leading cause of malpractice claims. Common mistakes include data entry errors; missing a filing deadline; failing to use file review dates, and failing to prepare for the unexpected, be it a fire that destroys the office, a weather event that results in the courthouse closing early, or an inability to access any data due to a ransomware attack.
To avoid these kinds of missteps, you must have in place an office-wide calendar and clearly defined procedures regarding its use. Develop a standardized calendaring policy that sets forth all types of items to be calendared, the expected frequency and timing of reminder dates, and the applicable deadlines for the various types of cases you handle. A calendaring system such as this should also:
- Be easy to use, maintain, and teach to new personnel
- Include some redundancy, either through multiple paper or computer calendars that are created independently from each other
- Provide for a cloud-based backup in the event of a disaster
- Include a process that allows for crosschecks between the independently created calendars in order to catch any calendaring errors that will occur from time to time
- Have at least one reminder date for every open file to ensure that all files are reviewed on a regular basis
- Include tracking procedures that enable you to identify who made any given entry
- Be accessible 24/7
7) Managing Client Relationships – Every matter you take on comes with a client. Listen to them. You are in their employ and the matters you are working on are their matters, not yours. By way of example, not all clients wish to pursue litigation. Take time at the beginning of the attorney-client relationship to clearly identify what every client’s goals or objectives are. Ask questions. Consider and then propose alternative directions or solutions. Allow clients to meaningfully participate in the decision-making process and feel some control in resolving their legal issues.
Be personable with the client when possible. Pleasant conversation or a little levity when appropriate can demonstrate that you are invested in the client as a person. Clients will feel that you view them as more than just a money source. With business clients, learn as much as you can about their business or industry. The more a client gets to know you and you them, the easier it will be for the client to place confidence and trust in you.
Teach your support staff about the importance of courtesy, timeliness, professionalism, and confidentiality when dealing with clients. Remember that your staff is the interface between you and your clients; and understand that if staff members are depressed, overworked, feel taken for granted, or are dissatisfied generally then negative messages, however unintended, are going to reach your clients.
8) Billing – The goal is to demonstrate to your clients the value of your services, which can make it easier for your clients to pay. This can also help reduce the possibility of having to deal with a fee dispute. Start by always billing on a monthly basis unless the client has specifically requested otherwise. Provide detailed billing statements that describe the work that was done and how long it took. An entry such as “2.5 hours for research” is unacceptable. A better choice would be “2.5 hours researching state case law on piercing the corporate veil.” Finally, review all bills in order to look for errors before they are sent out.
Authored by: Mark Bassingthwaighte Risk Manager
Since 1998, Mark Bassingthwaighte, Esq. has been a Risk Manager with ALPS, an attorney’s professional liability insurance carrier. In his tenure with the company, Mr. Bassingthwaighte has conducted over 1200 law firm risk management assessment visits, presented over 550 continuing legal education seminars throughout the United States, and written extensively on risk management, ethics, and technology. Mr. Bassingthwaighte is a member of the State Bar of Montana as well as the American Bar Association where he currently sits on the ABA Center for Professional Responsibility’s Conference Planning Committee. He received his J.D. from Drake University Law School.