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Managing Ethical Risks Part 11

Finally, familiarity and complacency cause lawyers to mistreat those closest to them. People tend to treat those with whom they are in close relationships worse than they treat others. We see examples of this everyday in our families, in public, and in business settings. A child or spouse may speak to us in a way that they would never speak to one of their friends.  A first date gets dinner and a movie; a fourth anniversary may get a, "oh yeah, happy anniversary." A person that we have hired to perform a service may do so slower than promised, miss appointments, or otherwise behave in unsatisfactory ways that they would never reveal to a person who is considering hiring them, but has not yet done so. At work, people that work together closely may speak to each other in ways that they would never speak to other employees with whom they do not have a close a relationship.

 

The reasons behind this dynamic are probably as numerous as the experiences themselves. However, a common denominator is that people tend to take close relationships, and the people with whom they have them, for granted. They believe that they can count on such a person to stick around even if they are not giving them their best game.

Lawyers and clients with long-standing relationships are not immune to this dynamic. A lawyer with an urgent message from an existing client and a potential new client may return the latter's call first, taking for granted the existing client will understand. A client with too much to do may defer getting discovery responses back to a long-standing lawyer in favor of other projects, because he or she knows that the lawyer will understand and the client can count on a lawyer to get the work done even if left with little time to do it. Lawyers may find themselves placing a long-standing, “comfortable” client's work in a position of lower priority than that of a new client that the lawyer wants to impress.

In the attorney-client context, one can never tell whether a given manifestation of this dynamic will (i) have no consequence, (ii) sour but not sever a relationship, (iii) result in the loss of that relationship, or (iv) produce an unanticipated harm that may give rise to a malpractice claim.  From every perspective, not just a risk management perspective, it makes sense for a lawyer to be vigilant about treating long-standing clients with as much enthusiasm and with as high a degree of service as the lawyer would treat a new client that the lawyer is still trying to impress.

Comply with Federal and State Asbestos Regulations

"What Cleaning and Restoration Professionals Need to Know to Comply with Federal and State Asbestos Regulations"

Even as the use of asbestos in new materials has waned since the 1970s, it remains in countless products, buildings and materials. To protect employees from health hazards and to avoid potential civil liability and criminal penalties, everyone involved in the cleaning and restoration industry should be aware of the prevalence of asbestos at job sites.

The rules related to restoring a building containing asbestos are complicated and differ depending on a jobsite’s location. Contractors should familiarize themselves with the relevant laws and the specific local enforcement policies for a jobsite before engaging in such work.

The Environmental Protection Agency (EPA) and the U.S. Consumer Product Safety Commission have banned several asbestos products, and many manufacturers have since voluntarily limited the use of asbestos. Nevertheless, it remains present throughout the country, particularly in buildings constructed before 1980. It is commonly found in insulation, floor tiles, ceiling tiles, roofing, paints and coating materials, fireproofing, and many other materials.

Products can contain widely varying concentrations of asbestos, ranging from 100 percent to trace amounts. Products with less than one percent of asbestos generally are not treated as asbestos for regulatory purposes.

In the past few decades, federal and state governments have enacted complicated regulatory regimes by which asbestos abatement is governed. Everyone in the cleaning and restoration industry should understand and comply with these rules or be prepared to face significant fines, civil liability and even criminal penalties. Before starting a project that might disturb asbestos, company owners and managers must be familiar with the full range of federal and state (and even local) regulations that govern licensing, certification, notification, worker safety, and disposal.

The federal government regulates asbestos exposure in buildings chiefly through two agencies, the Occupational Safety and Health Administration (OSHA) and the EPA. OSHA sets standards for worker protection involving construction, including the renovation or demolition of buildings, while the EPA sets broader standards to protect workers and the environment from asbestos. Restoration contractors need to comply with regulations promulgated by both agencies when working at a job site where that asbestos-containing material (ACM) may be present.

In addition to federal asbestos requirements under OSHA and the EPA, contractors must consider often-overlapping requirements at the state level. Each state has its own rules, and asbestos-related regulations can differ significantly. Contractors must review the laws of the state where the job site is located and determine what regulations apply.

The legal system is no substitute for the training, diligence and integrity needed to ensure that asbestos health hazards are properly handled. Before engaging in any work that could impact asbestos, it is important to understand the specific scope of the work to be performed, the governmental regulations that apply to your business and the applicable industry standards of care.

Consult with licensed asbestos professionals to ensure compliance with the applicable regulations. Most importantly, take the necessary steps to protect workers, as well as yourself, and be sure to comply with the restoration industry’s code of ethics.

(This post was adapted from a two-part article in Cleaning & Restoration magazine.  Authored by David M. Governo and Colin N. Holmes, Part 1 originally appeared in the March/April 2014 issue and Part 2 appeared in the May 2014 issue.)

Managing Ethical Risks Part 10

Familiarity and complacency makes lawyers chatty.

The more you know about something, and the longer you know it, the more a part of you it becomes. The more a part of you something becomes, the more likely it is to find its way into ordinary conversation and other communications. In the legal community, this can happen with respect to information about clients of whom a lawyer is particularly proud, details of particularly interesting matters, or circumstances that produced an exceptional result.

 

Lawyers generally are "on guard" about protecting the attorney-client and work product privileges, but many do not understand – much less honor – their entirely separate and broader obligation to treat as confidential all information relating to a representation, regardless of whether that information is also "privileged." The nature and scope of this obligation is described in Rule 1.6:

 

Rule 1.6 Confidentiality Of Information

 

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

 

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

 

(1) to prevent reasonably certain death or substantial bodily harm;

 

(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services;

 

(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;

 

(4) to secure legal advice about the lawyer's compliance with these Rules;

 

(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or

 

(6) to comply with other law or a court order.

 

Comment:

 

[3] The principle of client-lawyer confidentiality is given effect by related bodies of law: the attorney-client privilege, the work product doctrine and the rule of confidentiality established in professional ethics. The attorney-client privilege and work-product doctrine apply in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule, for example, applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law. See also Scope.

 

A lawyer that obtained a great result for a client in a matter may nonetheless face a malpractice claim if the lawyer improperly divulges information relating to the representation that somehow harms the client. The ways in which this may happen are limited only by the limits of one's imagination.

 

Next: Mistreating Those Closest

Managing Ethical Risks Part 9

Familiarity and complacency cause lawyers to take on matters they are not competent to handle. Rule 1.1 describes the ethical considerations associated with deciding what matters to undertake, or not.

Lawyers do not like to give their competitors the opportunity to get their foot in the door, and possibly "steal" a client.  This is especially true with respect to valued, long-standing clients. So, when a good client calls with a matter that is out of the lawyer's and his firm's typical areas of practice, some lawyers agree to handle the matter when they are really not competent to do so, rather than refer the client to another lawyer.

For their part, clients have a role in this process as well. Clients with long-standing relationships with their lawyers become comfortable with them, their level of service, their billing practices, and their staff. All things being equal, they may (understandably) prefer to have their usual counsel handle an unusual matter, rather than take a chance on an unknown quantity in the form of new counsel. So, they may encourage their long-standing counsel to represent them in a matter that is outside the lawyer's typical areas of practice, and even agree to pay the cost of the lawyer "getting up to speed" in this new area.

Whether the lawyer should agree to handle the unusual matter under these circumstances is a judgment call that depends on a number of factors, discussed below. Ultimately, however, the risk to the attorney is that he or she will make a mistake that an attorney experienced in that area of practice would not: missing an important case, statute, regulation, issue, defense, approach, or strategy.

In the immortal words of a lawyer with whom I once practiced, "The law is some tricky s__t.” In my own, practicing law is hard even when it’s easy.  It is hard enough to play error-free ball when you know the rules of the game you are playing. It's much harder in a new and unfamiliar game that you are trying to learn as you go. When considering the following ethical guidelines for deciding whether to take on a matter in an unfamiliar area of practice, a lawyer would be well advised to err on the side of referring the client to a lawyer that is unquestionably competent to handle it.

Next: Being Chatty

Law Day-The Great Equalizers

Recently, Pope Francis tweeted: “Inequality is the root of social evil.” I would like to go a little further and suggest that in the United States, lawyers are the great equalizers. Our Constitution was drafted, in part, by lawyers seeking to avoid the dangers of a monarchy and an overzealous government. Our Bill of Rights makes us unique and gives us not only rights, but responsibilities. In his speech at the Sorbonne on April 23, 1910, then former President Teddy Roosevelt, speaking most eloquently about the duties of citizens in a democracy, said, “To you and your kind much has been given, and from you much should be expected . . . no self-respecting individual, no self-respecting nation, can or ought to submit to wrong.”

Today, in this time of 24 hour news and 24/7 Internet bombardment of opinion and disinformation, there must be guardians of truth. Our Constitution sets forth the framework for finding the truth with rights, including but not limited to, free speech, due process of law, equal protection, counsel in criminal matters, and protection from illegal search and seizure. But this precious framework is worthless unless we have champions willing to stand in the breach and cry foul when these rights are abridged, either individually or against society as a whole. The list of legal championships is long, and in the history of the world unique to the United States of America: Marbury v. Madison, Brown v. Board of Education, and Gideon v. Wainwright are just a few examples. Each case was championed by a lawyer, who was not afraid to seek truth, justice and equality.

Just this week, the owner of the L.A. Clippers was banned from the NBA and fined $2,500,000.00 because of racist statements he made in a private conversation. The NBA may now try to take away his ownership of the team. Notwithstanding the despicable nature of his comments, the issue may come down to whether a citizen may be deprived of property as a result of a surreptitious private recording of his speech. He has the means to hire an army of lawyers to protect his property rights. But what about the aggrieved single mom who can’t support her family because of a deadbeat dad, the falsely accused indigent, or the individual who is the subject of racial, gender, age or religious discrimination? Who will take their cases? Most likely, it will not be an army of lawyers hired by a multimillionaire. No, it will be a solitary lawyer who takes seriously his or her oath “to preserve, protect and defend the Constitution of this State and of the United States . . . and to assist the defenseless or oppressed by ensuring that justice is available to all citizens. . . .” President Abraham Lincoln knew the trials and tribulations of a lawyer seeking justice, truth and equality. These lessons he learned so well were the foundation for his quest for equality for all Americans. Speaking on the issue of equality and the framers of the Constitution, he stated, “They meant to set up a standard maxim for free society which should be familiar to all – constantly looked to, constantly labored for, and, even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people, everywhere.”

I know of no greater honor in civilian society than the privilege of representing a client in pursuit of truth, equality and justice. We lawyers must always be willing to stand in the breach between lies and truth, injustice and justice, and inequality and equality. So, on this Law Day 2014, take stock in the words of Pope Francis, President Lincoln, and President Teddy Roosevelt. In our society, we lawyers are the great equalizers and we must fight social evil by “constantly” laboring for equality. If he were alive on this Law Day 2014, I think that President Roosevelt would be telling us: The credit belongs to the lawyer who is actually in the courtroom… who strives valiantly; who errs… who comes short again and again… who does actually strive to do the deeds…. who knows great enthusiasm… who spends himself or herself in a worthy cause… who at best knows in the end the triumph of high achievement, and who at worst, if he/she fails, at least fails while daring greatly, so that his/her place shall never be with those cold and timid souls who neither know victory nor defeat.

- See more at: http://abnormaluse.com/2014/05/law-day-the-great-equalizers.html#sthash.8f7mOvu0.dpuf

Managing Ethical Risks Part 8

Familiarity and complacency cause lawyers to withhold bad news and remain in cases from which they should withdraw.

It is difficult to get a new client in the door, and it is difficult to keep a good client for a long time. Frequently, a lawyer’s desire to preserve a long-standing attorney-client relationship will cause him not to share with the client information the lawyer believes may jeopardize that relationship. Such information may relate to a mistake, an adverse development, a bad result, the development of a conflict, or any number of other things.

 

Lawyers rationalize withholding such information from clients through the belief that they can fix the problem, that the problem will go away, or that the case could proceed to a successful conclusion without the client ever learning about the problem. A close, long-standing relationship with a client makes it especially difficult for a lawyer to pull the trigger on the ultimate, necessary resolution to some of these problems: withdrawal from the representation.

 

Although it is not possible to know how often lawyers withhold such information from clients, stay in cases from which they should withdraw, obtain successful outcomes, and the clients never learns about it, there are plenty of cases in which this plan did not work and actually made matters worse. This approach is also inconsistent with a number of ethical obligations lawyers owe their clients.

 

Withholding information is inconsistent with a lawyer's fiduciary duty of candor to the client. It deprives the client of the opportunity to make informed decisions about how to proceed in the case, including whether to continue to use the same lawyer or bring in a new one. It creates a conflict, in which the lawyer has placed his or her own interests ahead of the client's. The list goes on.

 

From a risk management perspective, it's a terrible approach. If the problem was the commission of malpractice, the lawyer will be in a far worse position having to defend a malpractice action in which she concealed the mistake then she would be if she had disclosed to the client and allowed the chips to fall where they may. Also, lawyers that try to fix their own mistakes in secret from the client, and stay in cases from which they should withdraw, frequently create evidence that is then used against them in ensuing malpractice cases.

 

Example: a plaintiff's attorney filed suit after missing the statute of limitations, did not tell the client, and attempted to "fix" the situation by claiming that an exception to the statute of limitations applied. While still in the case, he retained an expert who authored a report that supported a huge damages figure. The lawyer later lost on the statute of limitations issue, was sued for malpractice, and then had to attack the very damages calculations he procured.

 

A lawyer should not allow the duration and comfort of a close client relationship prevent the lawyer from withdrawing from a given representation when circumstances warrant.

Managing Ethical Risks Part 7

Familiarity and complacency cause lawyers to assume, often incorrectly, how the client wants them to handle a case.

 

By the time a lawyer gets his tenth in a series of similar cases from his client, he may take for granted that he knows how the client wants the case defended and just proceed according to his assumptions. Lawyers should not allow inertia to determine how they are going to handle a case. Even in the context of a "typical" matter for a client with whom the lawyer has a close, lengthy relationship, the lawyer should find out the client’s objectives and how they want the case defended, and then set about implementing the client's wishes.

 

Doing so is not only good practice; it is required by the following ethical rules. Although a close and familiar relationship with the client may allow the lawyer to address these matters in an abbreviated and less formal manner than he may have done in his first case for the client, the lawyer must do these things in some manner in each case.

 

Rule 1.2 Scope Of Representation And Allocation Of Authority Between Client And Lawyer

 

(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued.

 

Rule 1.4 Communication

 

(a) A lawyer shall:

 

(1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules;

 

(2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;

 

(3) keep the client reasonably informed about the status of the matter;

 

(4) promptly comply with reasonable requests for information; and

 

(5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.

 

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

 

Without regard to how close the lawyer's relationship is with the client, lawyers sometimes find themselves in trouble because they adopt the attitude that the case is "my case" rather than the client's case.  This attitude may manifest itself in arrogance, with the lawyer taking an Al Haig "I'm in charge here" approach. More often the lawyer may have the perception that he should not trouble the client with certain decisions, or may fear being regarded as indecisive or afraid to make a tough call if he goes to the client to make important decisions.

 

Lawyers should avoid these ways of looking at their relationships with their clients. The case is the client's case, not the lawyer's. The lawyer's job is to give the client good advice about the pros and cons of different alternatives, make a recommendation, and allow the client to make an informed decision. To the extent there are risks associated with given choices, those risks are the client’s, and the client – not the lawyer – should choose which risks they want to take and which ones they do not. Lawyers who make these decisions for their clients without consulting them may find themselves insuring against losses resulting from those risks.

 

Next: Withholding Bad News, Not Withdrawing

Managing Ethical Risks Part 6

Familiarity and complacency cause lawyers to not memorialize important developments, discussions, and decisions (for fear they will be perceived as “CYA”). 

Lawyers in close relationships with clients often do not confirm things in writing that they would confirm in writing with a new or unfamiliar client, typically out of fear that the client will perceive a lawyer to be unnecessarily "covering their ass." Lawyers and clients need to get past this idea and instead welcome written confirmation of important developments, discussions, and decisions. The risks associated with not confirming such things in writing are well demonstrated by considering them in juxtaposition with the benefits of doing so. 

The most basic benefit of confirming things in writing is to make it unnecessary to depend on one's memory to know what happened. If a lawyer or client does not remember what they discussed about the case, what the client decided, or why, all sorts of bad things may happen. Additionally, not having important events and decisions reduced to writing can lead to disagreement and conflict as a result of differing memories, whether genuine or fabricated.  Confirming matters in a written communication to a client (as opposed to a memo to the file that the client does not see) avoids these potential problems. 

Another benefit of reducing developments and verbal communications to a writing that is sent to the client is that the process gives the reader the opportunity to address promptly any errors or misunderstandings in the writer's rendition of what happened. If the client and the lawyer leave a conversation with different understandings of what was said or decided, it is much better to find that out early, through this process, than later, after the misunderstanding or miscommunication may have produced a harmful result. 

A related idea is that things often look much different in writing then they may have sounded in a conversation. A client that makes a decision after a conversation with a lawyer may want to revisit that decision when he receives a confirming letter that says, "This will confirm that, although I advised you not to do so, you instructed me to…" The client may not have perceived the lawyer's comments to have been of this nature, or may rethink the decision merely by being confronted with its presentation in this form. Many undesirable outcomes that produced malpractice claims could have been avoided by achieving a level of greater clarity in attorney-client communications; confirming letters allow lawyers and clients to communicate with clarity. 

Another benefit of sending confirming communications is that, although some cases may seem like they will last forever, neither you nor your client contact will. Confirming letters allow your successors (as well as contemporaries working on a matter with you or the client) to understand what happened, what the lawyer and client decided, and why. This allows the matter to proceed smoothly in real time, and also precludes later players from inaccurately portraying the situation to the lawyer's disadvantage. 

Lawyers and clients should think of their files not as warehouses, but as toolboxes. Confirming letters are not something that a lawyer should just plan to pull out later to defend herself against accusation of malpractice. They are written records of important developments, discussions, and decisions that good lawyers use to do good work in real time, as well as to avoid making errors.

 Next: Handling Cases by Inertia

Managing Ethical Risks Part 5

Familiarity and complacency also cause lawyers to take a casual approach to written communications. 

One of the nice things about having a long-standing, friendly relationship with a client is that the lawyer can let his guard down, be more relaxed, and not be such a lawyer, right? This is a natural part of the process of developing and maintaining close relationships. 

While that may be true from an interpersonal relations perspective, it becomes dangerous ground when viewed from a risk management perspective, especially with respect to written communications. Any written communication, whether a letter, e-mail, or text message, that will become part of your file or the client's file about that matter (and you should assume that all of them will) should be lawyerly and professional. Each should also be unambiguous with respect to whether the information being communicated is to be interpreted literally, to be taken in jest, or regarded as hyperbole.

Written communications that were perfectly appropriate when they were composed may appear inappropriate later when circumstances change, friends have become enemies, or a client representative with a different set of standards or sense of humor is reading the communication. Make communications "bulletproof" regardless of who is reading them, or under what circumstances. 

In that regard, you should assume that your written communications with a client will someday be read by a larger, non-client audience.  Although a client can count on his lawyer to keep attorney-client privileged communications confidential, a lawyer should not count on his client to do so. A client can waive the privilege and publicize lawyer communications for any reason or no reason at all. In legal malpractice claims, all relevant attorney-client communications can become public. Even absent litigation, a client may choose to publicize harmful communications from an attorney after a falling out.

 

Next: Failing to Memorialize


 

Managing Ethical Risks -Part 4

Familiarity and complacency also cause lawyers to take a casual approach to checking and clearing conflicts associated with multiparty representations.

How many times do you suppose this has happened:

Voicemail: "Jane? Bob here. I'm sending you over a new case. They sued the retailer in this one to avoid diversity, so we will need you to represent that company, too. Please run conflicts and let me know."

            Email response: "Bob, no conflicts. Send the file, and thanks again for        engaging us."

Jane sends engagement letter to Bob, receives and reviews the file, and files answer for company and retailer.

In my experience, this happens a lot, and it creates a lot of problems. Here are some of them, along with suggestions about how to avoid them.

Running the names of the plaintiff and your prospective clients through your conflict system does not tell you everything you need to know to determine whether you have a conflict that would preclude you from representing both defendants in a lawsuit.  Whether you can represent multiple defendants depends on a variety of factors that are listed in Model Rule 1.7 and its comments. In order to develop the information needed to make all these determinations, the lawyer has to have conversations with the client that asked her to undertake the representations and the other individual or entity she is being asked to defend. Only after the lawyer determines that the facts and her potential clients' positions allow her to do so may she agree to represent both of them.

As the Rule and common sense require, the lawyer must also talk to the other party she has been asked to represent to determine whether that party wants her to represent it at all, before ever getting to the question of whether conflicts would preclude her from doing so. A lawyer cannot simply make an appearance on a party’s behalf just because someone else has agreed to pay the lawyer to represent it, without first obtaining the party’s consent to be represented in this manner.

Finally, just as the lawyer should with respect to her "regular" client, the lawyer should send her other, new client an engagement letter, and otherwise treat that client in the very same way she treats her "regular" client. To even think of this client as a "secondary" client (and the regular client as the "primary" client) as some lawyers do is to invite breaches of duty to the “secondary” client that can result in malpractice claims.

The failure to correctly navigate the opportunity to undertake a multiparty representation may result in the lawyer finding herself in a conflicting representation from which she, at best, will have to withdraw from both representations or, at worst, may face a malpractice claim. Even the act of withdrawing will cause the lawyer's "regular" client to incur the additional expense of getting new counsel up to speed, which could be an expensive proposition. If this risk is not made part of the conversation going in, the lawyer's "regular" client may not remain such a client in the future. The circumstance of having represented clients with conflicting interests, however briefly, may also later lead to allegations that the lawyer placed one of those client’s conflicting interests ahead of the other, and harmed the other in doing so.

Next: Written Communications


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