| Oregon State Bar Bulletin — APRIL 2012 |
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2011 Trends from the OSB's Client Assistance Office
By Scott Morrill
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The OSB Client Assistance Office continues to receive nearly 2500 complaints a year from the public and members of the bar, including judges, expressing concerns and complaints about lawyers and the legal system.
Since CAO opened for business in August of 2005, we have received complaints from people expecting the bar to do something. Many complaints are dismissed because they do not implicate the Oregon Rules of Professional Conduct, are not supported by any evidence or for some other practical reason such as they do not name any lawyer licensed in Oregon. Some complaints are handled informally. For instance, CAO may call a lawyer and convince him or her to initiate contact with a client who is feeling ignored, or we may convince a lawyer to turn over a client’s file. We refer people to the Professional Liability Fund, or the OSB Client Security Fund and the bar’s lawyer referral program. We let people vent about lawyers and give them suggestions about how to find the right lawyer to handle their unique legal problem. We let people tell us about corrupt counties and make comments disparaging lawyers in general. Two hundred sixty — or 13.28 percent of complaints in 2011 — were referred to the bar’s disciplinary counsel’s office because CAO determined there was sufficient evidence supporting a reasonable belief that misconduct may have occurred. (BR 2.5(b)(2)).
What Are They Complaining About?
Communication
The number one complaint for 2011 was lack of communication. About 10 percent of all complaints in 2011, 197 to be precise, were that a lawyer was not adequately communicating or responding to requests for information about the client’s legal matter. CAO understands this concern from both sides. We are often amazed when we return a frustrated client’s voicemail message the same day and the caller acts surprised. Often the first comment we hear is, “Thank you for calling me. That’s more than my own lawyer has done.” But, we sympathize with lawyers who get multiple voicemails, letters or emails from over-anxious clients who expect immediate responses and ask the same questions over and over.
The communication rule, Oregon RPC 1.4, only requires lawyers to keep clients “reasonably informed” and to “promptly comply with reasonable requests for information.” Reasonable is a broad term and CAO is adept at applying the standard to determine if either a client or a lawyer is being reasonable. However, we often feel like Bill Murray in “Groundhog Day” when we talk to lawyers about this issue. Murray’s character had to relive the same day over and over again until he got it right. We certainly tell lawyers the same thing over and over again: Have a system for responding to clients even if the response is little more than, “I don’t have anything new to report. I’ll contact you when I do.” This sort of response can be handled by a staff person. You can also develop template letters to respond to clients to advise them that you received their request for a status update, but that there is nothing to add at the moment. You might even put language in your fee agreement advising clients that you will keep them informed about developments and that all calls by them are billed at your usual rate, even if there is nothing to report.
Client Files
Number three on the list of complaints that implicate the Oregon RPCs is failure to turn over a client’s file. (We are not ignoring number two, which is dishonesty. However, that is a number that if analyzed more closely would likely fade away as many complainants confuse dishonesty with poor advice). In 2011 we received 88 complaints (4.49 percent) that lawyers would not turn over client files. As noted above, often CAO will convince a lawyer to turn over a client’s file rather than fight with the client about it. Again, we see both sides of this issue. Clients often cannot move ahead with their legal matters — even the ones that intend to sue the very lawyer they are trying to get their file from — and lawyers often have a legitimate interest in getting paid.
Oregon RPC 1.15-1 and 1.16 are the rules that govern client file issues. Generally speaking, everything in a client’s file belongs to the client and clients are entitled to all of it (yes, even what many lawyers consider to be “work product”) unless the lawyer has a legitimate reason not to turn it over. If you have a valid attorney fee lien and you do not mind responding to bar complaints or lawsuits, then go ahead and assert it. However, your real issue is your fight with your former client about getting paid. Withholding the file is not going to make the client any more likely to work out the fee issue with you and is more likely going to result in the added stress of explaining yourself to the bar. If a client cannot afford to pay the fee and needs the file for some good reason, the client’s interests will likely trump the lawyer’s. There have been plenty of Bar Counsel columns and ethics opinions written on this subject. Take a look at Helen Hierschbiel’s January 2006 Bar Counsel column on client files at www.osbar.org/publications/bulletin/06jan/barcounsel.html and Oregon Ethics Opinion 2005-125 discussed therein.
Lack of Dilgence
Fourth on the list of complaints is lack of diligence by a lawyer. We received 67 — 3.42 percent of all complaints in 2011 — that a lawyer was neglecting a legal matter. It is likely that many of these complaints could be combined with communication complaints to create a super group of 264 complaints or 13.48 percent. However, CAO tries to separate them. Many clients feel that their lawyers are neglecting them and putting their matters on the “back burner” (actual words used in complaints). Oregon RPC 1.3 prohibits lawyers from neglecting legal matters entrusted to them. But, neglect is not the same as negligence. Neglect is doing nothing on a client’s matter when you know you should be doing something. Negligence is doing nothing on a client’s matter because you did not realize you should be doing something, or doing something, but not the right thing. See, In re Magar, 335 Or 306, 66 P3d 381 (2003).
Fee Complaints
Fee complaints hold the number five spot. In 2011, CAO received 57 (2.91 percent) of these complaints. Very few of these complaints make it through the CAO screening process and even fewer are prosecuted by the bar’s disciplinary counsel’s office. This is because most fee complaints turn out to be disagreements between the lawyer and client about the reasonableness of the fees or whether they were earned. Fee arbitration, collections, small claims and other options usually resolve those concerns. Oregon RPC 1.5 only prohibits clearly excessive and illegal fees. Billing an hourly rate more than what is in your fee agreement is another example of a clearly excessive fee. Charging an estate for probate work without court permission is an example of an illegal fee. In re Nishioka, 23 DB Rptr 44 (2009) provides examples of each, both clearly excessive and illegal fees.
But, there are several ways to generate a fee complaint that may require a response to the bar. Not providing regular, monthly billing statements is one way to generate a complaint. Send out regular billing statements. Do not wait several months and then send one big bill. Vague billing statements irritate clients. A billing entry reading, “Reviewed File- 3 Hours” works far less well than some basic level of explanation. “Read Client Letter-Researched Statute of Limitations- Drafted Letter to Court- 3 Hours” is more likely to reassure a client you are not churning a file. Failing to discuss with clients what sort of events may trigger spikes in billing also may result in a complaint. While it may be obvious to lawyers that they have to ramp up for a trial, even if it is continued at the last minute and that you may have to do that more than once, many clients do not realize that. Take advantage of the bar’s fee arbitration program. It is simple and cost effective. You will have to use it if you receive a referral from the bar.
Trends
There are some revealing trends when complaints are analyzed by practice area. Probate and estate planning lawyers have to contend with complaints by concerned family members whose inheritances or power to control or assist aging parents have been altered. These complaints often arise when other family members convince parents to change their estate plans and the negatively impacted family member honestly believes the lawyer was responsible for influencing fragile clients to make poor decisions. Nearly 5.33 percent of complaints arose from probate and estate planning cases in 2001. Practitioners should review Oregon RPC 1.14 for guidance.
Lawyers who engage in or assist clients with debt collection cases have to deal with frustrated debtors who maintain that they do not owe anything or that the lawyers are being unfair or harassing. In 2011, 2.86 percent of the complaints CAO received arose from debt collection matters. We see more and more of these complaints as the Fair Debt Collection Practices Act continues to evolve — and because of a tough economy.
An interesting type of complaint that CAO is not tracking directly, but that anecdotally appears to be on the rise is the complaint that lawyers are assisting clients to violate court orders. Many of these complaints arise out domestic relations matters where one spouse or the other fails to pay support on time or fails to abide by child visitation plans. While it is CAO’s experience that few of these complaints have merit, it is a good idea for lawyers to document their files to reflect that they have advised clients to abide by court orders so that later, a frustrated client will not be able to accuse the lawyer of telling him or her to do otherwise. Oregon RPC 1.2(c) and 3.4(c) both address this situation and prohibit lawyers from assisting or counseling clients to ignore court orders and even more importantly, prohibit lawyers from personally disobeying court orders.
Finally, no year-end review of complaints would be complete without some comment regarding conflicts. Combining current client conflicts, former client conflicts and lawyer self-interest conflicts accounts for 81 or 4.14 percent of the complaints CAO received in 2011. Current client conflicts should be fairly easy to avoid. If you have to do something for one client that necessarily damages another client and it cannot be waived by consent, you should steer clear of that case unless you can obtain valid informed consent. Oregon RPC 1.7 and 1.8. Lawyers should also be wary of self-interest conflicts. A sometimes overlooked provision of Oregon RPC 1.7 is the last clause in section (a)(2): “or by a personal interest of the lawyer.” In other words, make decisions in your client’s best interests and not yours. See In re Bailey, 21 DB Rptr 64 (2007), for an example.
Former client conflicts are more difficult. If you have previously represented a client and now have a new client that has a dispute with your former client, be careful that the matters are not the same or substantially related, and do not use information you learned from your former client to his or her detriment (Oregon RPC 1.9). Even if you are quite sure there is no conflict, expect your former client to file a complaint and be ready to explain to the bar why there is no issue. Former client conflicts may often be waived, but they may not be worth the trouble.
So, keep your clients updated, give them their files, be diligent, send regular billing statements and keep your client base clean and separated. Call the bar’s general counsel’s office or any CAO lawyer if you have questions about your ethics responsibilities. If faced with a bar complaint, the bar’s member services department maintains a list of lawyers who may help. CAO is standing by to process 2012’s complaints.
ABOUT THE AUTHOR
Scott Morrill is an assistant general counsel for the OSB Client Assistance Office. He screens complaints about lawyers for ethics concerns and also gives informal ethics advice to lawyers. He can be reached at (503) 431-6344, or toll-free in Oregon at (800) 452-8260, ext. 344, or by email at smorrill@osbar.org.
Ethics opinions are published and updated on the bar’s website here.
An archive of Bar Counsel articles is available here.
© 2012 Scott Morrill