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When I started my own law practice over a decade ago, a grizzled old lawyer told me, “Quit worrying about your adversary coming after you; it’s your client you need to worry about.” At the time, I was offended by the man’s cynicism. Obviously, the attorney-client relationship was a holy bond of mutual trust that would withstand the toils and travails of the struggle for truth and justice. Clearly, I was convinced, he’d gotten it wrong. But as any general knows, before you engage the enemy, you’ve got to make sure that your own troops don’t drop artillery shells on each other. When U.S. soldiers are killed by their fellow soldiers, it’s called “friendly fire.” When experienced lawyers and judges try to warn their juniors about friendly fire, they call the course “ethics” and for many young lawyers, it’s an opportunity to take a good nap. Wrong. The terrible truth is that we attorneys are human beings. We let down our guard when we like or trust people around us. Just like everyone else, we would like to do deals on a handshake, believe that if we do a good job people will just do the right thing and that signing a prenup will kill the romance of a scintillating attorney-client relationship. In our concern and haste in dealing with the terrible problem or hot prospect facing our client, many of us in small practices forget to dot our i’s and cross our t’s. Even when we’ve done that, attorney-client frictions may arise. So, for those of you who snoozed through ethics, here are a few tips for watching your back: � Enter into a signed retainer agreement In New York, the agreement must contain language informing the client of the right to arbitrate any dispute between you and the client. It should set forth your financial relationship, what you agree to do, what the fee includes and what the client agrees to do, particularly billing arrangements. Do not proceed without this agreement. � Inform your client of his or her rights and responsibilities Your bar association has a nice copy of this statement, suitable for framing. My firm keeps a copy in the front of our office, prominently displayed. I have seen lawyers attach this to retainer agreements, which is really a good idea. � Respond in writing to any client complaints. If clients complain loudly and persistently, or if they put any complaints in writing, you must promptly respond in writing. Be gracious, professional and thorough. Set the record straight, but do not engage in e-mail wars. When a client knows that you cannot be bullied, he may relax and behave. If your client service needs improvement, acknowledge the shortcoming, apologize and move on. � Try to put bad news in writing Clients often wish to adopt a strategy that you believe is less than optimal. The preferred scenario, of course, is where attorney and client agree on the best strategy. But there are situations when the client insists on a strategy that is perfectly legal, ethical and proper, but that you think stands a lesser chance of success. It’s a good opportunity to put your thoughts in writing and explain to the client that you are proceeding against your better judgment. When the strategy or tactic selected by the client is not successful, the client may still blame you for the result, but you will have proof if the “I told you so” becomes necessary. On the other hand, when the client is right, it’s also nice to acknowledge that, too. � Explain the costs in writing Even where a client has signed up to an hourly retainer and has paid regularly, when a client asks you to engage in a new task that will be costly or that carries risk, it is best to explain the costs and risks to the client and to communicate that explanation in writing. It is also helpful to regularly communicate in writing any cost-saving measures you are taking on a client’s behalf, or any advantages that your representation has brought to the client. � Take a deep breath I always laugh when associates who insisted that they really wanted “client contact” start ducking calls from demanding clients. Clients have problems they cannot solve on their own and they pay you hundreds of dollars an hour to perform what they often perceive to be simple tasks. Courtesy, grace and a good sense of humor are necessary defenses against this type of friendly fire. No attorney should be a punching bag, on the one hand, and you should demand respect. On the other hand, the person on the other line or across the table from you is facing an issue that may be the most important and daunting that person has ever faced in his life. If they fly off the handle, it’s part of your job to just listen, or to roll with the punches, if the client’s anguish happens to be expressed in a personal attack. If you give it back, never lose control or overstate your case. Try waiting until you cool down to respond. � Be very clear about money Do not agree to a flat fee unless you are 100 percent certain you can perform within that budget. If your fee is based on a time estimate, or on the premise that the job will be without complications, that premise should be crystal clear — in writing. If you take money to perform a job and the job turns out to be a multi-year nightmare, your retainer agreement should have language to protect and comfort you. � When the relationship ends, document it properly Remember, your professional status demands that you act as the “adult” in the attorney/client relationship. When ending a relationship, try to make sure that your documentation is as clear as when you entered the relationship — a brief letter informing the client of the outcome of the case, or containing an accounting or asking the client whether he wants the file returned. These documents may save you a lot of time in the long run. Where an open court proceeding is involved, be sure to check the rules and, where permitted, proceed by order to show cause to have the judge let you out of the case in such a way that the client’s rights are not prejudiced. CONCLUSION Every attorney will encounter friendly fire during the span of a career. When preventative measures do not work, seek out attorneys who have been through similar experiences or call your bar association hotline and ask for some perspective. Problems that seem overwhelming will often shrink to manageable dimensions just by talking them through. Raymond J. Dowd runs the commercial litigation practice of Dowd & Marotta. He serves on the board of directors of the New York County Lawyers’ Association.

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