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Commentary and Analysis Regarding Colorado Law

6 minutes reading time (1142 words)

Is it your ethics, or your office management?

Tim O Neil 01For most attorneys, their law school training readied them to counsel clients, draft legal documents, and litigate disputes; it may not have prepared them as well for the practical reality of running a business. At some point in our careers, however, most of us have to come to grips with the nuts and bolts of managing a law practice, especially those of us who are sole practitioners or members of small firms. While running your own business may not have been what drove you to the profession, being thoughtful and skillful about how you manage your law office is critical not only to your financial success, but the ethics of your practice.

The Colorado Rules of Professional Conduct, which govern the ethical and professional conduct of lawyers in the state, may not specify exactly how one must run their law office (although, with respect to certain matters, like what bank accounts to have for your business, they do), many times lawyers find themselves answering to the Office of Attorney Regulation Counsel (OARC) regarding issues that arise from what are primarily office management problems. A lawyer who is remiss in viewing their office management practices through the lens of professional responsibility under the Rules might be unwittingly setting an ethical trap for herself in the future. The time demands of attending to client needs must be balanced with time demands of managing your practice.

For instance, in my time with the OARC, two of the most common complaints from complaining parties concerned a lack of communication or diligence from their counsel. Rule 1.4 of the Rules of Professional Conduct requires lawyers to communicate reasonably with their clients about their representation, while Rule 1.3 requires a lawyer to act with reasonable diligence and promptness. Oftentimes, when investigating complaints of this nature, the root cause of the problem could be traced to deficiencies in the attorney’s law office management.

With respect to communication, there are some office management best practices that can ensure that the attorney is properly communicating. First and foremost is drafting an effective and comprehensive fee agreement or engagement letter. While lawyers are obligated by rule to provide the basis and rate of fees and expenses in writing, a good fee agreement or engagement letter should do much more than that. It should provide a description not only of the scope of the lawyer’s services, but of how those services are going to be provided. The more information the lawyer can provide to the client at the outset of the representation, the better that lawyer can help manage the client’s expectations during that representation, so that there are no surprises down the road for that client. In my experience, client’s do not appreciate surprises from their lawyer.

Second, and perhaps more importantly, is providing thorough and regular billing statements. Most of us are used to receiving bills on a monthly basis, whether those bills are for our cell phones or our mortgages. When it comes to bills for legal services, sending regular monthly bills can serve two purposes: it can help ensure the attorney gets paid, and it can provide regular communication to the client about what is happening on the case. When it comes to the substance of those bills, the more detail the better. Lawyers who provide terse descriptions of the work performed, or who provide bills on a semi-regular basis, may find themselves in trouble with their clients. No client wants to be charge $600 for “Emails” or “Research.” A client may understand that charge better if the billing statement explains the substance of the emails and to whom they were sent, or what specific issue the research addressed. Likewise, no client want to receive a $7,000 bill for seven months of work. As unpalatable as seven monthly bills of $1,000 might be, a client is less likely to file a complaint (and more likely to pay) if it is receiving regular monthly bills. Less is not more in the billing context.

Other communication issues can arrive from the systems in place—or not in place—to deal with client contacts or requests for information. Lawyers are often very busy, and it may be difficult or impossible to field calls or respond to client email as quickly as the lawyer or client may wish. Does your office have systems in place to make sure that someone is tracking all contact, so nothing falls through the cracks? If the lawyer is unavailable, can someone else take the call? A lack of responsiveness can be very frustrating to the client. It is generally a best practice to not only have systems in place to make sure all client contacts are being addressed timely, but to explain to the client at the outset of the representation how such contacts will be handled, so that the client’s expectations fit with the practical reality.

With regard to diligence issues, it is critical that a law office of any size have in place systems to track all deadlines and project timelines. Today, there are any number of tools available to help with calendaring. Some track only certain hard deadlines, like litigation deadlines or certain transactional deadlines. But whatever system is in place, it should also account for self-imposed deadlines. If the lawyer told the client that something would be done by a certain date, whatever system is in place should account for that self-imposed deadline. In assessing any calendaring, the questions to ask are: Who is responsible for placing deadlines on calendars, and how many people have access to those calendars to make sure things do not get missed?  Are you relying only on one electronic calendar? What happens if there is a problem with your software/hardware? Do you have a backup plan? Is the lawyer responsible for the work the only one getting notice of impending deadlines, or is another lawyer or staff person notified? And if the lawyer is the only one getting notice, does he get notice once or multiple times? Redundancy is a good thing, when it comes to calendaring.

These are just a few examples of law office management issues that can lead to ethical problems for lawyers, but the interplay between effective law office management and compliance with an attorney’s professional responsibility is significant. In 2016 and 2017, a subcommittee of the Colorado Supreme Court’s Attorney Regulation Advisory Committee, of which I was part, looked at common ethical issues that can arise from law office management problems in the hopes of crafting a tool that could help practitioners assess their current practices. That subcommittee came up with a fifty-two page self-assessment for attorneys that touches on a long list of management-based ethical issues. Whether completing that form is necessary, one thing is certain: lawyers who fail to evaluate and review their law office management practices regularly, do so at their peril.

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