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Commonwealth of Massachusetts


May 1998

Make-up Time - Working with the client who's reported you

by
Alice L. Hageman and Ellen M. Meagher

Your client has reported you to the Board of Bar Overseers. You have received a letter from the Office of the Bar Counsel with a copy of your client's complaint, giving you twenty days to answer. In addition to preparing your answer, or retaining counsel to do so, what should you do to address the issues that gave rise to the complaint?

Some attorneys feel that a complaint to the B.B.O. creates a per se conflict between attorney and client. They believe that the first action an attorney must take is to file a motion to withdraw in the underlying matter. This is not necessarily the case. Whether or not a conflict is created, and whether or not an attorney should move to withdraw, depends on the nature of the client's allegations. Often, problems occur because of a misunderstanding or poor communication. Many of these problems can be repaired.

Representation must continue

Attorneys may believe that they are not permitted to communicate with a client after the client has filed a complaint and that they should take no action on the client's case until the B.B.O. complaint is resolved. However, Mass. R. Prof. C. 1.3 (S.J.C. Rule 3:07, Massachusetts Rules of Professional Conduct) obligates an attorney to act with reasonable diligence and promptness in representing a client. Thus, unless or until an attorney has been discharged, or has formally withdrawn, the attorney must continue to take whatever actions are necessary to zealously represent the client.

Salvaging the relationship

An attorney should study carefully any complaint received from the Office of the Bar Counsel and try to determine whether the relationship with the client can be salvaged. If so, the attorney is encouraged to contact the client, discuss with the client the problems that led to the complaint and, if possible, take whatever steps are necessary to restore the attorney-client relationship. Note, though, that S.J.C. Rule 4:01, § 10 prohibits a lawyer from conditioning settlement, compromise or restitution upon the complainant's refraining from filing a complaint, withdrawing a complaint or failing to cooperate with Bar Counsel.

Many complaints to the Office of the Bar Counsel include the refrains, "My attorney doesn't return my phone calls," "My lawyer hasn't come to speak to me at the jail," "I haven't received copies of the papers I've requested," or "I don't know what's happening with my case." Mass. R. Prof. C. 1.4 requires the attorney to keep the client reasonable informed about the status of the client's case, and to comply promptly with reasonable requests for information. Mass. R. Prof. C. 1.15(b) requires a lawyer promptly to deliver to a client any funds or other property that the client is entitled to receive. If an attorney has not recently communicated with the client, the attorney should write a letter, send copies of requested documents, schedule a meeting or get on the telephone. As appropriate, the attorney should apologize for whatever has impeded the communication and give the client an update on the current status of the case.

Many complaints to the Office of the Bar Counsel also include the refrain, "My lawyer hasn't done anything on my case since last month/last season/last year." Rule 1.4 requires an attorney to act with reasonable diligence and promptness in representing a client." If an attorney has been putting off writing a letter, filing suit, filing a motion, calling counsel for the other party, calculating a financial statement, preparing a probate account, filing an estate tax return, obtaining an M-792 tax lien release, the attorney should take immediate action and report to the client what has been done.

Sometimes a client complains that an attorney is charging an excessive fee, or is billing for actions not taken. An attorney can offer to review the bill with the client, and look more closely at the items on the bill that the client specifically questions. If the attorney and client still can't reach an agreement, they could consider fee arbitration under the auspices of the Massachusetts Bar Association, the Boston Bar Association or the Worcester County Bar Association.

When you're discharged

Once a client has discharged an attorney, Mass R. Prof. C. 1.16(a)(3) requires the attorney to withdraw. If court permission for withdrawal is required (such as when the matter is in litigation and no successor counsel has appeared), Rule 1.16(c) requires an attorney to file a motion to withdraw when the client terminates or attempts to terminate the attorney's services. The court will then determine whether or not the attorney continues as counsel. If the has retained successor counsel, an attorney may not have any further direct communication with the client without counsel's consent. Mass. R. Prof. C. 4.2.

Bear in mind that even if an attorney has been unfairly discharged by the client, the attorney must take all reasonable steps to mitigate the consequences to the client. (See Comment 9 to Mass. R. Prof. C. 1.16.) In particular, Rule 1.16(e) requires the lawyer to make available to the former client certain enumerated materials from the client's file and Rule 1.16(d) requires a refund of any unearned fee.

It is, of course, preferable to take remedial action before a client complains to the Office of the Bar Counsel. Nevertheless, even if you haven't followed through on an intended action until after the client files a B.B.O. complaint, a prompt response often leads a client to inform Bar Counsel that his concerns have now been addressed. Although Bar Counsel is not required to cease an investigation after a complaint is settled or withdrawn, resolving the problem with the client is always a mitigating factor and, in appropriate circumstances, may warrant closing the file or dismissing the complaint without disciplinary action.



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