Ethics Bowl & Malpractice Issues

Transcription

1 Vermont Bar Association 60th Mid-Year Meeting Seminar Materials Ethics Bowl & Malpractice Issues March 30-31, 2017 Equinox Resort & Spa Manchester Center, VT Speakers: Michael Kennedy, Esq. Christopher D. Ekman, Esq.

2 Vermont Bar Association 60th Mid-Year Meeting Equinox Resort & Spa Manchester Center, VT 1) Additional Materials Link:

3 Bad Practice = Malpractice March 30, 2017 Vermont Bar Association Christopher Ekman & Michael Kennedy Examples of Good Practice 1. Client Selection: Choose Wisely 2. Engagement Letter: Lock it Down 3. Fee Disputes: Know When to Fold Em 4. Work the Problem: Candid Advice 5. Manage Client Expectations: Bubbles Will Burst 6. Deliver the File Rule 1.15 Rule 1.15(a): a lawyer shall safeguard client property that comes into the lawyer s possession as a result of the representation Rule 1.15(d): Lawyer shall promptly deliver to the client any property that the client is entitled to receive. 1

4 Client Selection: Choose Wisely Are you the 4 th lawyer they ve engaged? Do they have the ability to pay? Do they feel right to you? (don t ignore that voice) Client Selection: Choose Wisely BLONDIE Frank Sinatra Taylor Swift I ve gotta long list of ex lawyers, They ll tell you I m insane. And I ve got a Blank Space, baby, And I ll write your name. Blank Space = Ethics Complaint 2

5 The Engagement Letter Place to lock things down. Describe scope of work and work not within scope Consider peripheral matters. Even if not strictly within scope, you may need to perform Define who the client is and who the client isn t Duty to non client; third party beneficiaries Frequency of Communication Basis & Rate of Fee Who Else Checks your E mail? Fee Disputes Are Best Avoided Almost always lead to claims Be clear in engagement letter Send invoices regularly Disengage for non performance Rule 1.16(b)(5); Comment 8 A lawyer may withdraw if the client refuses to abide by the terms of an agreement relating to the representation, such as an agreement concerning fees or courts costs of an agreement limiting the representation. Know the Problem, Work the Problem Get the facts. Know the law. Don t wing it. If you don t know, ask. Write client a letter analyzing the matter 3

6 The Grisham Rule Before you send an e mail, ask what would my mother say about this e mail? Don t demean opposing party, counsel, or judge. Every might end up on a screen for the jury, or attached to an ethics complaint for disciplinary counsel to read MANAGE EXPECTATIONS Warden Martin MANAGE EXPECTATIONS Warden Martin 4

7 Great Expectations Set Reasonable Expectations Manage them. Don t ever stop managing them. Candid legal advice, not what they want to hear. Frequency of communication Nature/Basis of Fee BUBBLES BURST! Deliver the File: VBA Advisory Opinion SYNOPSIS A lawyer must deliver to a client or former client, upon request, all property that the lawyer has in his/her possession which the client is entitled to receive. Further, a lawyer may only assert a lien for attorney s fees and costs if to do so would not prejudice the client in pursuing his/her case VBA Advisory Opinion Reaffirms VBA Advisory Opinion 91 3 Each draws heavily from ABA Informal Opinion 1376 (1) all of the property delivered to the lawyer by the lawyer s client; (2) the end product of the lawyer s work; and (3) all other material which is useful to the client in fully benefiting from the services of the lawyer. Notwithstanding the foregoing, a lawyer need not deliver his/her internal notes and memos which have been generated for the lawyer s own purposes in working on the client s problem 5

8 VBA Advisory Opinion Generally, Rule 1.16(d) requires lawyer to deliver: (1) all of the property delivered to the lawyer by the lawyer s client; (2) the end product of the lawyer s work; and (3) all other material which is useful to the client in fully benefiting from the services of the lawyer. Key Point: VBA Advisory Opinion Notwithstanding the foregoing, a lawyer need not deliver his/her internal notes and memos which have been generated for the lawyer s own purposes in working on the client s problem. VBA Advisory Opinion In my view, the opinion clearly signals that Vermont is an END PRODUCT jurisdiction, not a work product jurisdiction. 6

9 ABA Formal Opinion 471 Ethical Obligations of Lawyer to Surrender Papers and Property to which Former Client is Entitled. For purposes of 1.15, ABA Says The File Includes: Tangible personal property Items with intrinsic value or that affect valuable rights : wills, deeds, securities, negotiable instruments Any documents provided by a client Rule 1.16(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practical to protect a client s interests, such as surrendering papers & property to which the client is entitled. This is the file. 7

10 What is client entitled to? Majority view: Entire File. Exceptions: 1. Non disclosure duty to third party 2. Lawyer s assessment of the client 3. Info that would endanger others 4. Internal firm communications What is NOT end product Time and expense records Drafts that have not yet been filed Internal memoranda/legal research Anything generated for the lawyer s own purpose ABA 471 End Product, but Generally, client not entitled to entire file, only to those materials that would likely harm client s interest if not provided 8

11 ABA View File Includes Material provided by client Anything filed with court, or completed & ready to file, but not yet filed Executed instruments Court orders Correspondence, including electronic correspondence Discovery Third party evaluations ABA View File Does Not Include Drafts of pleadings not yet filed with court Drafts of legal instruments Internal legal memos & research Internal conflict checks Personal notes Hourly billing statements Notes of ethics consultations General assessment of the case Anything under duty not to disclose ABA View Exception If representation is terminated before matter is completed, protection of the former client s interests might require delivery of materials that the lawyer generated for the lawyer s own purpose. 9

12 Providing Info Along the Way ABA encourages regular provision of information Not because of the rules on the file & client property, but to comply with Rule 1.4 and duty to keep client reasonably informed Provided Info Along the Way Fact that information provided along the way is NOT dispositive as to whether there is a duty to provide again upon termination of representation But MIGHT be dispositive as to whether lawyer has to pay for the time to copy and send again 10