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When most young attorneys graduate from law school they expect to spend their time litigating, negotiating and pontificating. They do not expect to be engaged in risk management, handholdingand bookkeeping in order to protect themselves from their clients and partners. Attorneys working for small firms have an extra burden because typically they fail to have adequate bureaucratic protocols and resources to prophylactically protect against the hidden dangers created by ornery clients and dishonest or careless colleagues. It is the failure to take the time to engage in defensive lawyering that often causes disciplinary problems and ultimately threatens a firm with a financial disaster. Defensive lawyering can be difficult for small firms especially if firm resources are thin and lawyers are required to handle administrative tasks, including computer problems, filing and storage issues, supervising support staff and firm banking. There is a never-ending list of mundane matters which must be managed but do not produce income. Without any immediate threat or foreseeable financial gain, the last thing a busy practitioner wants is to devote time to administrative tasks. However, if the small firm is unorganized or shortsighted, a mundane issue may grow into a problem that hobbles the firm. Needless to say, there are practical solutions for small firm practitioners that can limit the danger zones — malpractice actions and disciplinary prosecutions — by balancing practical defensive lawyering with billable hours. Although the old adage “time is money” is particularly true for small firm lawyers whose bottom line may rise or fall more frequently than interest rates, protecting oneself will ensure significant amounts of time are not wasted in defending a malpractice action or a disciplinary investigation. MEMORIALIZE, MEMORIALIZE … Disgruntled clients are the primary cause of disciplinary investigations and ultimately become the plaintiffs in malpractice actions. One effective way to minimize this particularly potent source oftrouble is to keep clients involved and informed. An easy way to accomplish this is to send clients work you have produced, copies of letters you have sent and updates on the status of their cases. Obviously, this can become a burden for the small firm practitioner. Consequently, it is imperative that every firm find an efficient but effective system suited for the firm’s size, resources and practice. E-mail is sometimes an efficient alternative for communicating, and documents can easily be attached. In fact, e-mail creates a record of the communication. If a firm is able to demonstrate that the client received a copy of a motion, memorandum or letter, the client’s claim that his attorney failed to communicate will not be credited by adisciplinary committee. A firm can also have a secretary or paralegal provide clients with updates on routine matters if a lawyer is too busy. If a firm uses support staff (i.e., paralegals, secretaries) to shoulder theburden of handholding responsibilities, the lawyer must make sure that the staff person is patient, skillful in handling people and trained in only providing information that is appropriate underthe circumstances. A secretary’s inaccurate or abusive response to a client might very well motivate a disciplinary complaint. A note on the file by the secretary memorializing the conversation would be particularly helpful later on. Of course, if an important issue has arisen in a client’s matter, particularly bad news, the lawyer should personally speak with the client. Understandably, the burden of handholding is particularly difficult in a high-volume practice. However, the most common basis for disciplinary complaints for these practitioners involves clients who feel their case is being neglected because they are not kept informed of its progress. This is particularly true of clients whose litigation typically involves long gaps between activities. Communication will allay a client’s fear of neglect or abandonment. There will be times when a letter is not possible or arguably overkill for a particular situation. Jot a quick memo to the file. It could simply be a handwritten note on an internal log or a scribble on the outside of the file. Memorialize, memorialize, memorialize. It is the view of some practitioners that it is better not to create a file memo or send a confirming letter because the attorney does not want to memorialize a conversation. Of course, there will be times when strategy dictates that there should be nothing in writing. However, if you are afraid to memorialize conversations it is a signal that you should carefully scrutinize the wisdom of what you are doing. Although shortcuts may sometimes suffice, there are some instances when a written memorialization is imperative. For example, when a client is constantly unreasonable and critical, the lawyer should err on the side of a letter or, at minimum, a thorough memo to the file. Similarly, a confirming letter is a good idea when there is a disagreement with a client about a significant strategy or when a client is waiving a conflict. Inevitably, the attorney will be blamed for the parties’ subsequent unforeseeable problems and the lawyer will be defending himself or herself based upon a swearing match. Many practitioners ignore the importance of keeping the client informed and memorializing client contact because there is no immediate danger. However, there is no statute of limitations for filinga disciplinary complaint, and laches, for the most part, does not apply. Consequently, an attorney may face a claim of misconduct years after the pertinent events. For instance, when a client alleges in a disciplinary complaint that an attorney neglected his case there is typically an additional allegation, which bolsters the claim, that the attorney failed to communicate or misrepresented the status of the case. Without a paper trail, a swearing match between the attorney and the client may determine whether the attorney will be disciplined. Similarly, a client after speaking to “friends” may decide his civil settlement was inadequate. A subsequent lawsuit may seek to set aside the settlement or deny the lawyer her fee based upon a claim of coercion or a lack of informed consent. Without proof of the client’s informed consent to settle,including a memorialized conversation, the attorney may face a lawsuit and/or a disciplinary investigation that turns on a conversation that occurred years earlier. Many courts, and certainlyjuries, are receptive to a client’s plea of overreaching by an attorney. This makes communicating with clients and memorializing these communications essential to combat even frivolous or fabricated allegations. In short, take the time to keep the client informed, and, in appropriate instances, memorialize or confirm, because a memorandum or letter may be essential years later when you are asked to reconstruct a conversation that is critical to defending yourself. SUPERVISE AND COORDINATE Supervision of subordinates has always been an obvious responsibility of lawyers and law firms. A less obvious supervision responsibility, often ignored by small firms, is the supervision of fellow partners and firm business. Typically, in large firms there are oversight committees, ethics committees, chairs of practice groups, an army of accountants and well-instituted protocols to minimize the chance a partner’s misconduct will slip under the radar. These safeguards help to minimize a partner’sexposure to improper conduct by another partner. In small firms, trust and long-standing relationships are often relied on to replace these safeguards. While trust is extremely important in the close quarters of a small practice, if one partner engages in misconduct the other partners may be particularly susceptible to criticism. The intimate nature of the practice creates an assumption that the other partners either knew or should have known of any problem. On occasion a partner may have tangential, even fortuitous, involvement with a client or case that will inadvertently bring them into the circle of responsibility. Exposure to this type of criticism is particularly acute in small firms that function as a conglomeration of solo practitioners who, in reality, only share rent, bank accounts and office expenses. In this type of practice, it is common for one partner to have no involvement with the otherpartner’s practice whatsoever. Nevertheless, this type of practice will not necessarily immunize a partner from firm issues, including responsibility for the firm’s bank accounts. This is why an attorneymay have to play bookkeeper, a role for which the attorney was not trained and may feel uncomfortable about. In short, partners need to take the time to know what their partners are doing and what is going on in the firm. Looking over a partner’s shoulder may be deemed intrusive and in small firms formal meetings are unnecessary; however, informal meetings or lunches allow busy partners to keep abreast of firm issues.Reviewing the firm’s operating account may be touchy in many situations, but a periodic review of a firm’s escrow account statements when an accountant is not responsible for reconciling the accountmay be time well spent since even an inadvertent mistake, if discovered, could avert a disaster for everyone. Presumably, small firm practitioners hesitate to look over their partner’s shoulder because they have had a good relationship for a number of years and they believe their partner is trustworthy andhonest. In most instances, this is true. Yet, lawyers work hard to help clients avoid even unlikely problems, but they ignore potential issues in their own backyard. Experience tells us that if a problem arises in a firm and responsibility and liability is in question, or there is a large amount of money at stake, that a trusted colleague (or a firm) may decide their self-interest is more important than that of their partner. It is certainly better to avoid this unpalatable showdown by addressing issues early on. These are but two examples of ways in which small firm practitioners should protect themselves. While time is limited for everyone, including busy lawyers, using a portion of your working hours to practice defensively will save you time in the long run even if it serves to avert only a single disaster. Neglecting these non-income generating practices is to invite future trouble. Richard M. Maltz is a solo practitioner in New York, concentrating in ethics issues, disciplinary defense, law firm issues and litigation involving the practice of law.

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