Oregon State Bar Bulletin MAY 2013
Lessons to Pass Along:
Complaints About Lawyers in 2012
By Scott Morrill
The OSB Client Assistance Office (CAO) continues to receive around 2000 complaints a year from the public and members of the bar (including judges) expressing concerns and complaints about lawyers and the legal system. Here are some reflections on the complaints reviewed by CAO in 2012.
Since the office opened for business in August of 2005 we have received complaints from many sources often with the hope that we will help the complaining party. 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 and convince a lawyer 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, the bar’s client security fund, the Department of Justice and lawyer referral. We let people vent about lawyers and give them suggestions about how to find the right lawyer to handle their unique legal problem. We listen to stories about corrupt counties and cheating lawyers. Two hundred forty-five, or 12.3 percent of the complaints in 2012, were referred to 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)). This number is nearly the same as 2011.
The number one complaint for 2012 was lack of communication. We received 174 complaints in 2012 (8.7 percent) that a lawyer was not adequately communicating or responding to requests for information about the client’s legal matter. This has been the number one complaint since the CAO first opened for business. CAO understands this concern from both sides. We are often amazed when we return a frustrated client’s voicemail the same day and the caller acts surprised. Often the first comment we hear is, “Oh, you returned my call. 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 are being reasonable. However, we often feel like we are in some sort of repeating loop as this complaint comes up over and over and we tell lawyers the same thing over and over. 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.
Number three on the list of complaints that implicate the Oregon Rules of Professional Conduct are allegations that lawyers were not competent. We are not ignoring number two — dishonesty; however, upon closer examination that number fades away as many complainants confuse dishonesty with poor advice.
Competence replaces the ever-popular complaint about lawyer’s failure to turn over a client’s file. In 2012 we received 126 complaints (6.3 percent) that lawyers were not handling matters competently. Many of these complaints end up being dissatisfaction with the quality of a lawyer’s services (malpractice) or with the pace at which a particular lawyer is moving. While most competency complaints are dismissed by CAO, the lesson here is that lawyers should document their efforts to address client concerns. As long as lawyers can demonstrate basic competence CAO is likely to dismiss these complaints.
As noted above, complaints about client files are always high on the list. Often we will convince a lawyer to turn over a client’s file rather than fight with the client about it. We see both sides of this issue. Clients often cannot move ahead with their legal matters (even the clients 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 govern client file issues. Generally speaking, everything in a client’s file belongs to the client, and clients are entitled to all of it — 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.
Your real issue, however, 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 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.See for example, Helen Hierschbiel’s January 2006 column at www.osbar.org/publications/bulletin/06jan/barcounsel.html.
Fifth on the list, and moving into the top five for the first time, is prosecutor misconduct. We received 61 complaints about prosecutors. While prosecutors are subject to all the rules, there is one that is specific to them. Oregon RPC 3.8 prohibits prosecutors from prosecuting charges that they know are not supported by probable cause. The rule also requires prosecutors to turn over all evidence that they have that tends to negate the guilt of an accused or mitigates the sentence. Best practices are for prosecutors to have charges vetted by a grand jury and to turn over everything they have to the defendant or their lawyers.
Sixth on the list of complaints is lack of diligence (neglect) by a lawyer. We received 49 or 2.5 percent complaints in 2012 that a lawyer was neglecting a legal matter. Many clients feel that their lawyers are neglecting them and putting their matters “on the back burner.” Oregon RPC 1.3 prohibits lawyers from neglecting legal matters entrusted to them. But, eglect 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 hold the number seven spot. In 2012, CAO received 46 (2.3 percent) complaints about fees. Very few of these complaints make it through the CAO screening process and even fewer are prosecuted by 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 an 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.
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. 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.
There are some revealing trends when complaints are analyzed by practice area. Criminal defense, domestic relations, personal injury and general litigation areas still dominate the top spots. However, probate and estate planning lawyers are making gains as they 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 4.6 percent of complaints arose from guardianship, probate and estate planning cases in 2012. 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. Slightly more than 2.2 percent of the complaints received in 2012 arose from debt collection matters. We see more and more of these complaints as the Fair Debt Collection Practices Act continues to evolve and also 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 a frustrated client will not later be able to accuse their lawyer of telling them 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 article about ethics trends would be complete without some comment regarding conflicts. Combining current client conflicts, former client conflicts and lawyer self-interest conflicts accounts for 80 or about 4 percent of the complaints CAO reviewed in 2012. 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 actually 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 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. Be extra careful if you practice criminal defense, domestic relations or personal injury law, and be wary if you work with elders or their families. Call general counsel 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 2013’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 e-mail at firstname.lastname@example.org.
© 2013 Scott Morrill