it’s about time

It’s About Time

Christian A. Stiegemeyer | Director of Risk ManagementChristina Lewis Abate | Risk Manager

THE QUIZ

1. But I have a Written Contract?You accept a contested probate case on a contingent fee basis. Your fee agreement states that if the client discharges the firm prior to the completion of the matter or decides not to pursue the matter, the client will immediately pay the accrued hourly rate incurred during the representation to that point. The conversion clause:

A. Is enforceable as a matter of contract law.

B. Is enforceable so long as the hourly rate fee is reasonable.

C. Is enforceable in quantum meruit.

D. Unenforceable.

THE QUIZ

2. This Land is Your LandYou represent a real estate developer. Over the course of several years you draft documents for successive entities of which the developer and investors are partners. The investors never sign an engagement letter or pay you a fee. After the development goes bankrupt and the investors lose $20 million, they sue for malpractice. On the question of whether you had an A/C relationship with the investors, the jury at your malpractice trial should:

A. Find an ACR because you did not have the investors sign a non-engagement letter.

B. Find there was no ACR because the investors never paid you a fee.

C. Find there was no ACR because it is not reasonable for the investors to believe you represented both them and the developer.

D. Find there was no ACR because the investors did not sign an engagement letter or fee contract.

THE QUIZ

3. Practice, practice, practice?You have learned that Adverse Counsel keeps clients’ notarized signatures on file and subsequently attaches them to discovery documents or documents to be filed in court. It is disputed whether the signer actually reviews the documents prior to the notarized signature being attached. Regarding this practice, you:

A. Don’t care what he does with his clients.

B. Have a duty to file a report with the OCDC after counseling and obtaining your client’s consent.

C. Think it is a nifty time-saving idea and look into incorporating it into your practice.

D. Do not have a duty to file a report with the OCDC.

THE QUIZ

4. I was Just Trying to be SociableAfter prevailing at trial, you are so excited you send out the following Facebook post, “Another million dollar verdict! We got the lying scum!! Who wants to be next?” This goes to relatives, friends, colleagues, acquaintances, some clients, and other people you’ve talked to about possibly representing in similar actions against this adverse party. The post:

A. Violates MRPC 4-7.1(c).

B. Violates MRPC. 4-7.3(c)(5).

C. Violates MRPCs 4-7.1(c) and 4-7.3(c)(5)

D. Is permissible because your Facebook site is strictly personal and not linked to any legal sites.

THE QUIZ

5. Bar NoneYou are defending a bar in a dram-shop action in which an over-served drunk customer shot and killed another patron. Because the law is unsettled on the question of whether you can make the shooter a party to the suit for allocation of fault, you decide not to include him. The jury finds the bar not liable for the shooter’s actions, but the judge directs a verdict against the bar for $950,000. The bar sues you for malpractice, claiming the shooter should have been included. At your malpractice trial on the issue of the standard of care the jury should find you:

A. Met the standard because of the unsettled nature of the law.

B. Met the standard because bringing the shooter into the action exposed your client to a malicious prosecution claim.

C. Met the standard because bringing the shooter into the action exposed your client to an abuse of process claim.

D. Failed to meet the standard because the prudent course of action would be to add the shooter as a defendant for fault allocation and preserve the issue.

THE QUIZ

6. It Never Occurred to MeYou draft a PoA for Client which includes this language: “The holder of this Power of Attorney shall also file an annual account by January 31st of each year and deliver it to [YOUR NAME HERE],attorney, or any attorney licensed in this state, designated by me or by the holder of this Power-of-Attorney for safe-keeping.” The holder does not file the annual account but does steal $800,000 of Client’s money. Client sues you for malpractice. The above language should be held to:

A. Create a duty in you to follow-up and encourage the holder to comply with the scheme.

B. Create no duty beyond exercising appropriate care in drafting the PoA.

C. Create the duty to be a guardian of Client’s financial well-being.

D. Create a duty of being a general overseer of the PoA’s holder’s conduct.

THE QUIZ

7. I thought I updated that?After changing firms, the notice of a federal district court’s decision is forwarded to your old email address. As a result, your notice of appeal is filed two weeks late. The district court, finding that all three factors necessary to reopen the time to appeal under Rule 4(a)(6) are present, grants additional time. In reviewing the decision the Circuit Court should:

A. Affirm the district court on the grounds that you did not timely receive notice.

B. Find the district court did not abuse its discretion because all factors of Rule 4(a)(6) were in fact met.

C. Affirm the district court because the law favors judgment on the merits.

D. Reverse the district court because failure to receive the notice “was entirely and indefensibly [your] fault.”

THE QUIZ

8. Again with the Social MediaDuring a dissolution representation you Facebook “friended” a client. Several months after the resolution, you receive a Facebook notification that the client has posted on her page. You’re surprised to see it is a disgruntled rant with the client claiming you did little work and way overcharged her. Not taking that lying down, you post on her page a copy of a memo you filed seeking recovery of your fees from the Husband, which was denied. Posting the memo was:

A. Permissible because the client waived attorney-client privilege when she alleged you charged an unreasonable fee.

B. A permissible “use” under Rule 4-1.9(c)(1) because the memo was “generally known.”

C. Permissible under Rule 4-1.6(b)(3) “to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client.”

D. Impermissible.

THE QUIZ

9. Last Social Media QuestionAs part of your investigation into a represented adverse party [AP], you view their Linked-In page to see what is there. The page has no password protection. The AP has enabled a feature of the system that allows them to “see” who has come onto their page. Because you are a Linked-In user also, you are aware of this feature. Looking at the Linked-in page:

A. Is an unethical communication under Rule 4-4.2 Communication with Person Represented by Counsel.

B. May be an unethical communication under Rule 4-4.2 Communication with Person Represented by Counsel.

C. Is ethical per Rule 4-4.2 because the page was not password protected.

D. Ethical pursuant to M.R.P.C. 4-3.2 Expediting Litigation.

THE QUIZ

10. Dating ServiceIn the ten year period 2002-2011, the most frequently reported “Error or Omission” malpractice category cited in the 2011 Legal Malpractice Insurance Report issued by the Missouri Department of Insurance was:

A. Fail to File Documents with no Deadline.

B. Failure to Calendar Properly.

C. Failure to React to Calendar.

D. Fail to Ascertain a Deadline Correctly.

THE QUIZ

1. But I have a Written Contract?You accept a contested probate case on a contingent fee basis. Your fee agreement states that if the client discharges the firm prior to the completion of the matter or decides not to pursue the matter, the client will immediately pay the accrued hourly rate incurred during the representation to that point. The conversion clause:

A. Is enforceable as a matter of contract law.

B. Is enforceable so long as the hourly rate fee is reasonable.

C. Is enforceable in quantum meruit.

D. Unenforceable.

THE QUIZ

2. This Land is Your LandYou represent a real estate developer. Over the course of several years you draft documents for successive entities of which the developer and investors are partners. The investors never sign an engagement letter or pay you a fee. After the development goes bankrupt and the investors lose $20 million, they sue for malpractice. On the question of whether you had an A/C relationship with the investors, the jury at your malpractice trial should:

A. Find an ACR because you did not have the investors sign a non-engagement letter.

B. Find there was no ACR because the investors never paid you a fee.

C. Find there was no ACR because it is not reasonable for the investors to believe you represented both them and the developer.

D. Find there was no ACR because the investors did not sign an engagement letter or fee contract.

THE QUIZ

3. Practice, practice, practice?You have learned that Adverse Counsel keeps clients’ notarized signatures on file and subsequently attaches them to discovery documents or documents to be filed in court. It is disputed whether the signer actually reviews the documents prior to the notarized signature being attached. Regarding this practice, you:

A. Don’t care what he does with his clients.

B. Have a duty to file a report with the DAO after counseling and obtaining your client’s consent.

C. Think it is a nifty time-saving idea and look into incorporating it into your practice.

D. Do not have a duty to file a report with the DAO.

THE QUIZ

4. I was Just Trying to be SociableAfter prevailing at trial, you are so excited you send out the following Facebook post, “Another million dollar verdict! We got the lying scum!! Who wants to be next?” This goes to relatives, friends, colleagues, acquaintances, some clients, and other people you’ve talked to about possibly representing in similar actions against this adverse party. The post:

A. Violates KRPC 7.1(b).

B. Violates KRPC. 7.3(a).

C. Violates KRPCs 7.1(b) and 7.3(a)

D. Is permissible because your Facebook site is strictly personal and not linked to any legal sites.

THE QUIZ

5. Bar NoneYou are defending a bar in a dram-shop action in which an over-served drunk customer shot and killed another patron. Because the law is unsettled on the question of whether you can make the shooter a party to the suit for allocation of fault, you decide not to include him. The jury finds the bar not liable for the shooter’s actions, but the judge directs a verdict against the bar for $950,000. The bar sues you for malpractice, claiming the shooter should have been included. At your malpractice trial on the issue of the standard of care the jury should find you:

A. Met the standard because of the unsettled nature of the law.

B. Met the standard because bringing the shooter into the action exposed your client to a malicious prosecution claim.

C. Met the standard because bringing the shooter into the action exposed your client to an abuse of process claim.

D. Failed to meet the standard because the prudent course of action would be to add the shooter as a defendant for fault allocation and preserve the issue.

THE QUIZ

6. It Never Occurred to MeYou draft a PoA for Client which includes this language: “The holder of this Power of Attorney shall also file an annual account by January 31st of each year and deliver it to [YOUR NAME HERE],attorney, or any attorney licensed in this state, designated by me or by the holder of this Power-of-Attorney for safe-keeping.” The holder does not file the annual account but does steal $800,000 of Client’s money. Client sues you for malpractice. The above language should be held to:

A. Create a duty in you to follow-up and encourage the holder to comply with the scheme.

B. Create no duty beyond exercising appropriate care in drafting the PoA.

C. Create the duty to be a guardian of Client’s financial well-being.

D. Create a duty of being a general overseer of the PoA’s holder’s conduct.

THE QUIZ

7. I thought I updated that?After changing firms, the notice of a federal district court’s decision is forwarded to your old email address. As a result, your notice of appeal is filed two weeks late. The district court, finding that all three factors necessary to reopen the time to appeal under Rule 4(a)(6) are present, grants additional time. In reviewing the decision the Circuit Court should:

A. Affirm the district court on the grounds that you did not timely receive notice.

B. Find the district court did not abuse its discretion because all factors of Rule 4(a)(6) were in fact met.

C. Affirm the district court because the law favors judgment on the merits.

D. Reverse the district court because failure to receive the notice “was entirely and indefensibly [your] fault.”

THE QUIZ

8. Again with the Social MediaDuring a dissolution representation you Facebook “friended” a client. Several months after the resolution, you receive a Facebook notification that the client has posted on her page. You’re surprised to see it is a disgruntled rant with the client claiming you did little work and way overcharged her. Not taking that lying down, you post on her page a copy of a memo you filed seeking recovery of your fees from the Husband, which was denied. Posting the memo was:

A. Permissible because the client waived attorney-client privilege when she alleged you charged an unreasonable fee.

B. A permissible “use” under Rule 1.9(c)(1) because the memo was “generally known.”

C. Permissible under Rule 1.6(b)(3) “to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client.”

D. Impermissible.

THE QUIZ

9. Last Social Media QuestionAs part of your investigation into a represented adverse party [AP], you view their Linked-In page to see what is there. The page has no password protection. The AP has enabled a feature of the system that allows them to “see” who has come onto their page. Because you are a Linked-In user also, you are aware of this feature. Looking at the Linked-in page:

A. Is an unethical communication under Rule 4.2 Communication with Person Represented by Counsel.

B. May be an unethical communication under Rule 4.2 Communication with Person Represented by Counsel.

C. Is ethical per Rule 4.2 because the page was not password protected.

D. Ethical pursuant to KRPC 3.2 Expediting Litigation.

THE QUIZ

10. Dating ServiceIn the ten year period 2002-2011, the most frequently reported “Error or Omission” malpractice event at The Bar Plan was:

A. Fail to File Documents with no Deadline.

B. Failure to Calendar Properly.

C. Failure to React to Calendar.

D. Fail to Ascertain a Deadline Correctly.

THE QUIZ

It’s About Time


What Does it Mean to be Timely?

Meeting Deadlines

Responding to Client Inquires

Moving the Client’s Matter Forward Expeditiously

Calendar Control

Engagement Letters/Fee Agreements

Concluding the Representation


1.3 Client-Lawyer Relationship: Diligence

A lawyer shall act with reasonable diligence and promptness in representing a client.

COMMENT [2] Perhaps no professional shortcoming is more widely resented than procrastination. A client's interests often can be adversely affected by the passage of time or the change of conditions; in extreme instances, as when a lawyer overlooks a statute of limitations, the client's legal position may be destroyed. Even when the client's interests are not affected in substance, however, unreasonable delay can cause a client needless anxiety and undermine confidence in the lawyer's trustworthiness.


1.3 Client-Lawyer Relationship: Diligence

A lawyer shall act with reasonable diligence and promptness in representing a client.

COMMENT [3] Unless the relationship is terminated as provided in Rule 1.16, a lawyer should carry through to conclusion all matters undertaken for a client. If a lawyer's employment is limited to a specific matter, the relationship terminates when the matter has been resolved. If a lawyer has served a client over a substantial period in a variety of matters, the client sometimes may assume that the lawyer will continue to serve on a continuing basis unless the lawyer gives notice of withdrawal. Doubt about whether a client-lawyer relationship still exists should be clarified by the lawyer, preferably in writing, so that the client will not mistakenly suppose the lawyer is looking after the client's affairs when the lawyer has ceased to do so. For example, if a lawyer has handled a judicial or administrative proceeding that produced a result adverse to the client but has not been specifically instructed concerning pursuit of an appeal, the lawyer should advise the client of the possibility of appeal before relinquishing responsibility for the matter.


1.4 Client-Lawyer Relationship: Communication

(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

COMMENT [1] The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so.





COMMENT [2] Adequacy of communication depends in part on the kind of advice or assistance involved. …The guiding principle is that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client's best interests, and the client's overall requirements as to the character of representation.





COMMENT [4] In some circumstances, a lawyer may be justified in delaying transmission of information when the client would be likely to react imprudently to an immediate communication. Thus, a lawyer might withhold a psychiatric diagnosis of a client when the examining psychiatrist indicates that disclosure would harm the client. A lawyer may not withhold information to serve the lawyer's own interest or convenience. Rules or court orders governing litigation may provide that information supplied to a lawyer may not be disclosed to the client.


Rule 226Kansas Rules of Professional Conduct

1.5 Client-Lawyer Relationship: Fees

(b) When the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation


Basis or Rate of Fee COMMENT [1] When the lawyer has regularly represented a client, they ordinarily will have evolved an understanding concerning the basis or rate of the fee. In a new client-lawyer relationship, however, an understanding as to the fee should be promptly established. It is not necessary to recite all the factors that underlie the basis of the fee, but only those that are directly involved in its computation. It is sufficient, for example, to state that the basic rate is an hourly charge or a fixed amount or an estimated amount, or to identify the factors that may be taken into account in finally fixing the fee. When developments occur during the representation that render an earlier estimate substantially inaccurate, a revised estimate should be provided to the client. A written statement concerning the fee reduces the possibility of misunderstanding. Furnishing the client with a simple memorandum or a copy of the lawyer's customary fee schedule is sufficient if the basis or rate of the fee is set forth.

Tactics to Ensure Timeliness

Client IntakeProcess should ensure

Submission and/or signed Engagement Letter/Fee AgreementCalculation of SoL – Attach presumed statute to intake formConfirmation of Calendaring – First critical date affirmed

CalendaringProcess should ensure

Ownership of delegated tasksEmpowerment to calendar deadlines“No Exception” policy

DocumentationProcess should ensure

Implementation of the BIG 3Regular and timely client communication

Applying TimelinessIn re Alberg, 294 P.3d 1192 (Kan. 2013)

2007 - Attorney files divorce petition

2009 (18 mos. Later) - Attorney sends client letter outlining fee arrangement

‘[K.J.], in light of my relationship with your family, we have continued on this case/quest for quite some time without formally rendering our longstanding oral agreement into writing as to my fees, costs and representation. In that regard we have agreed that you will be responsible for attorney's fees at the rate of $175.00 per hour or I will receive fees consisting of 1/3 of any and all proceeds of any kind or nature received or recovered from Respondent. As you know there are also “costs” involved for which you will be ultimately responsible. In regards to my attorney fees awarded me by the court you need to know that does not remove your ultimate responsibility for the fees which will remain as above without credit or offset of your responsibility hereunder. In the event no proceeds are collected you are still responsible for the hourly fees as a minimum.’


Post-divorce - KJ sent Attorney a letter on 11/13/09 indicating she understood the fee to be a 1/3 contingency.

Attorney responds on 11/16/09 – “‘Thank you for yours of November 13, 2009. Needless to say we disagree with your version of the events. In regards to the fee we were doing the divorce itself for an hourly fee. We also agreed that I would be entitled to 1/3 of any recovery we could make in collection of the award.”


2011 Motion to Determine Attorney-Client Agreement-

KJ testified:

She never received any regular billings or any billing statements;

She understood Attorney would take 1/3 of what she received in the divorce excluding child support and spousal maintenance and did not know a contingent fee arrangement in a divorce case was unlawful.

Attorney testified:

He did not have a written attorney-client fee contract;

KJ told him that she would give him 1/3 of what she got in the divorce;

He did not send regular billing statements to KJ but planned to charge hourly then credit the bill with collection proceeds;

He had a contingent fee agreement with KJ at the start of the representation for amounts that he collected after judgment was entered.


So, What to Do?

Recall Rule 1.5 Fees COMMENT [1]

“In a new client-lawyer relationship, however, an understanding as to the fee should be promptly established.”

Bill Monthly

Whether you think you’ll ever be paid or not.

Procedures

Office Procedures must be established to make this happen

List client Intake processes

Create tracking processes

Delegate where necessary and confirm compliance

Applying TimelinessParallel Iron LLC v. Adobe Systems Inc., D. Del., No. 12-874-RGA, 3/4/13

Law Firm Russ August & Kabat (RAK) drafted opinion letters and analysis to Adobe in 2006, 2007, 2009 and 2011.

Five Months after delivering the 2011 analysis report, RAK brought suit on behalf of Parallel Iron against numerous defendants, including Adobe.

Adobe moved to disqualify RAK, alleging a CoI against a current client per Rule 1.7.


RAK argued that:

Each opinion letter and analysis was a discrete engagement

Each had an agreed-upon budget;

The attorney-client relationship with Adobe ended with the final conference call because RAK attorney asked if any additional work was needed or requested, and Adobe said no.

Adobe contended that it at all times expected that it would be able to continue relying on RAK as opinion counsel.


Court Held:

Where there is no express contract or formal retainer agreement, courts look at the contacts between the parties to determine whether it would have been reasonable for the client to believe that the attorney was still acting as its counsel.

A determination of whether an attorney-client relationship exists requires a client-centric focus and the reasonableness of the client's belief is a fact-specific inquiry that depends on the client's history with the law firm The six-year history between Adobe and RAK made it reasonable for Adobe to believe that it would not be sued by RAK, at least without some prior notice that RAK would no longer be available to serve as its opinion counsel.

Fact that RAK had never refused work from Adobe strengthened the reasonableness of Adobe's belief that the attorney-client relationship was ongoing.


Court Held:

RAK could freely drop Adobe as a client but that it needed to clearly notify Adobe that the attorney-relationship was over before suing it.

RAK had the responsibility to ensure there were no questions regarding the status of its current client relationships.

When it became apparent that Adobe was a tenable target of Parallel Iron's suit, RAK should have been more alert to the delicateness of the situation and more proactive in eliminating any questions regarding the existence and extent of the Adobe relationship.


So, What to Do?Recall Rule 1.3 Client-Lawyer Relationship: Diligence

“Doubt about whether a client-lawyer relationship still exists should be clarified by the lawyer, preferably in writing, so that the client will not mistakenly suppose the lawyer is looking after the client's affairs when the lawyer has ceased to do so.”

Whose “Doubts”?

The Client’s


So, What to Do?

Recall Rule 1.3 Client-Lawyer Relationship: Diligence


Closing Letters – Use them, every time, in all representations, ESPECIALLY in those you consider “on-going.”

“This concludes our representation of you.”


So, What to Do?

Recall Rule 1.3 Client-Lawyer Relationship: Diligence


Procedures

Office Procedures must be established to make this happen

List client Closing processes

Create tracking processes

Delegate where necessary and confirm compliance

It’s About Time


Thank you!

it’s about time

Documents

fee contract

hourly rate fee

bar noneyou

contingent fee basis

fee agreement states

matter of contract law

clients consent

discovery documents