Law Office Management: Boundaries of Behavior
| Publication year | 1985 |
| Pages | 2185 |
| Citation | Vol. 14 No. 9 Pg. 2185 |
1985, December, Pg. 2185. Law Office Management: Boundaries of Behavior
Every practicing lawyer today is vulnerable to malpractice suits and grievance complaints. Defending such actions detracts from the economic profitability of the law practice. Hiring adequate legal representation may result in loss of time and money which could otherwise be devoted to producing billable hours on client matters. Additionally, the possible negative impact on the lawyer's reputation may result in a further reduction of profits through lost clients, current and prospective. In the extreme case of disbarment or suspension (legal death), the lawyer may lose the means of earning a livelihood.
Many factors which may cause a client to become dissatisfied with legal services can be controlled by the lawyer through proper law office procedure and management. This article highlights specific issues relating to legal malpractice and grievances arising in the areas of fee arrangements, timeliness and competence.
Further research on particular questions arising from specific fact patterns is always required. This article cannot present an exhaustive treatment of the evolving law, but is intended to provide a basis for discussion. Further, this article does not purport to render dispositive guidelines for resolution of ethics questions nor to interfere with the manner in which employment contracts are negotiated or performed by attorneys.
Grievances are disciplinary proceedings, and malpractice actions are civil suits. The adversary in a grievance action is the disciplinary authority. In a malpractice action, the adversary is the client or injured party. In a disciplinary proceeding, the goal is to protect the public and punish the violating attorney. In a malpractice action, the goal is to compensate clients for their injuries. Lawyers who are guilty of ethical violations are not necessarily guilty of malpractice. Most state attorney professional responsibility standards are patterned after the American Bar Association Code of Professional Responsibility ("Code"). Under the Code, there are three types of standards: (1) Canons, which are statements of axiomatic norms; (2) Ethical Considerations ("ECs"), which are aspirational principles; and (3) Disciplinary Rules ("DRs"), which are mandatory levels of conduct under which a lawyer is subject to discipline.
A DR violation alone should not give rise to an action for malpractice. However, in a malpractice action, the court may find that the appropriate standard of care is that reflected in a rule of legal ethics.
A lawyer's duty to a client may arise from the party's consent or by operation of law. An attorney-client relationship is established when the client consents to the lawyer acting on his or her behalf, and the lawyer agrees to act for the benefit and subject to the control of the client. No formalities are required, such as a formal retainer agreement. The lawyer's acceptance may be expressed or implied by conduct from which agreement could reasonably be inferred.(fn1) Once established, the relationship continues until the matter is completed or until the lawyer is relieved by the client or the court.(fn2) Once employment is terminated, a lawyer cannot represent someone whose interest in the...
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