There’s something that happens once you get your J.D. and pass the bar exam.
Suddenly, everyone you’ve ever known is crawling out of the woodwork asking for legal advice.
And while that slows down a bit if you decide, as I did, to pursue a career away from the law, you can still expect about a dozen calls per year from people wanting advice.
This past year, I’ve noticed a disturbing trend in the calls I’ve been receiving. Specifically, I’m getting more and more calls from friends who have already retained a lawyer, but are dismayed about the status of the legal work they’re receiving.
The complaints are so uniform that I thought I’d make this open call to the legal profession:
We can easily do better for our clients.
Below, I’ll present the three most egregious complaints I have personally received from friends and family over the past year, discuss any obvious rule violations in each case, and then make one final call for an end to bad lawyering.
Scenario #1: Leaving clients out of significant decisions
The first situation involved a friend of mine who had been in a car accident where the other driver was clearly at fault — he fell asleep at the wheel and rear-ended her at full speed. Her injuries were vast and required multiple surgeries. The recovery was slow and painful.
My friend retained a personal injury attorney shortly after the accident.
After 18 months of hearing next to nothing from her attorney, my friend finally received a call. He was recommending that she take a settlement offer from the insurance company for $5,000.
That seemed low to me, especially given the extent of her injuries. I asked her to request her entire file as she had never been copied on a single document. When I reviewed the file with her, I was shocked.
It turns out that shortly after filing the complaint, the attorney had given the insurance company an open-ended extension to file an answer.
He never asked my friend if that was ok, nor did he seek to communicate the implications of this decision when he re-confirmed that extension several times in writing.
For over a year, he simply let the case linger without any discovery, without any pressure on the insurance company, and without any work on his part.
It’s no wonder she got a low-ball offer.
What’s wrong here:
There’s so much wrong here.
Let’s focus on the most obvious rule violations. California Rule of Professional Conduct 1.3 states, “A lawyer shall not intentionally, repeatedly, recklessly or with gross negligence fail to act with reasonable diligence in representing a client.”
Rule 1.4 requires, among other things, that a lawyer “reasonably consult with the client about the means by which to accomplish the client’s objectives in the representation…and…keep the client reasonably informed about significant developments relating to the representation.” It also mandates that a lawyer “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”
In my view, my friend’s lawyer was in clear violation of both of these rules.
He not only failed to communicate anything about my friend’s case to her, but he also failed to explain that his endless extensions could actually jeopardize her case.
Scenario #2: Embarrassingly sloppy legal work
A few months later, I received a call from another friend who was feeling uneasy about a suit filed on her behalf for racial discrimination in the workplace.
She didn’t feel like the case was moving forward, and her lawyer wouldn’t return her phone calls. Once again, I asked my friend to obtain a copy of her full legal file, if for no other reason than the fact that she’d need it when she retained a new lawyer.
Once again, I was shocked.
In this lawyer’s very first communication to the attorney representing the corporate defendant, there were multiple misspellings, grammatical mistakes, and formatting problems.
If I would have received this letter from an opposing attorney when I was practicing, I would have laughed and ignored it. It was truly an embarrassing piece of “work.”
What’s wrong here:
I’m not sure there is an ethical duty against sloppiness (Rule 1.3 probably fits here) but there should be.
I don’t care how old you are, what your language challenges are, or how busy you are, sloppy legal work like this only does harm to a client’s case and to the profession’s image.
Scenario #3: No communication with the attorney
The final scenario involves the most common complaint I hear about lawyers.
A former colleague hired an attorney to negotiate a settlement with an insurance company. Once the retainer agreement was signed and the retainer check was cashed, my friend never heard from her lawyer again.
And while this particular firm did a reasonably good job keeping the client informed of the status of her matter, every phone call, email, and letter came from a paralegal or legal clerk (all of whom she described as exceptional, by the way). The lawyer never communicated with her at all.
Nonetheless, when the bills came each month, the attorney himself was charging for several hours of “research and analysis” time.
What’s wrong here:
To me, this situation walks the line of Rule 1.4.
The firm itself communicated quite well with the client. Yet none of the communications came from the lawyer my client thought she hired.
Meanwhile, the client grew weary of spending thousands of dollars each month on an attorney who, for all intents and purposes, was unavailable to her. How could she feel confident about the work being done when her lawyer might as well be invisible?
How our profession can do better:
From the consumer’s perspective, all three of these scenarios are unacceptable.
Whether they constitute clear violations of the California Rules of Professional Conduct is actually immaterial, isn’t it? Shouldn’t any reasonable practitioner be able to look at these scenarios and just instinctively say “that’s not ok”?
Look, I understand that attorneys are busy, firms are understaffed, and sometimes cases don’t pencil out financially.
That said, the consumer shouldn’t have to bear the burden of an attorney’s practice decisions.
The above scenarios could be solved with minor adjustments:
- Don’t take on cases you’re too busy or too disinterested to prosecute;
- Have someone in the firm proofread your work before you send it (or pay a modest monthly fee for an cloud-based typing assistant like Grammarly); and
- Set aside a half-hour each month to have personal contact with each client.
Those may seem like simplistic solutions but in reality, each of the people who contacted me just needed a little bit more from their attorneys.
I don’t think that’s too much to ask in order to keep clients happy and our profession credible.
