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Commonwealth of Massachusetts


April 2002

Writing and ’Rithmetic: Lessons from ACAP

by
by Anne Kaufman

The Attorney and Consumer Assistance Program (ACAP) is the central intake division of the Office of the Bar Counsel. The program was introduced in March 1999 and has now processed over 20,000 calls and letters from complainants who have concerns with the professional conduct of lawyers. Although most of these inquiries have been successfully resolved by the ACAP staff without opening a disciplinary complaint file, the vast majority could have been avoided all together had the lawyer adhered to some “golden rules” of practice.

Return calls and letters promptly

The primary cause of complaints to the Office of Bar Counsel is the failure of the lawyer to return telephone calls or respond to letters from the client. The importance of this simple courtesy cannot be overly stressed. Nothing angers a client more than not being called back by a lawyer. On the other hand, little is more appreciated by the client than the knowledge that the lawyer is thinking about the case and respecting the professional relationship that has been established.

In the ordinary case and even if there is no new information to impart, we recommend strongly that you connect with the client in a timely manner. Mass. R. Prof. C. 1.4 requires such communication, and the failure to keep the client informed is a common cause not just of complaints, but also of discipline. Keep in mind that the clients who seem insatiable in their need for attention are also the clients who will file a complaint. We urge you not to ignore their calls.

Provide copy of file in timely manner when requested

A large number of calls to ACAP come from former clients or successor counsel in need of the case file. In almost all cases, several attempts, both oral and written, have been made to secure the file. Mass. R. Prof. C. 1.16(e) mandates that the file must be made available to the former client within a reasonable time. The requirements of the rule differ depending on whether the fee is contingent or hourly and on the type of document. However, the wisest course is to hand over the file—promptly—and put any fee disputes off for a later day. See “The Ex-Files” in the Bar Counsel articles section of our website, www.mass.gov/obcbbo.

Put it in Writing

This caution relates to many aspects of the attorney-client relationship, from intake through fee issues to the settlement and conclusion of a case. In each instance clarity, including a written understanding, is the key.

At the outset of an attorney-client relationship, it is extremely important that the client understands exactly which of his or her many problems the lawyer has agreed to address. The divorce case flows into the housing problem, which relates to a disability issue and so on. Memorializing the limits of the terms of representation protects both client and lawyer should disagreement occur down the road.

Mass. R. Prof. C. 1.5 mandates that contingent fee agreements be in writing and further states that, when the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation. Regardless of the nature of the fee, all lawyers should maintain contemporaneous time records, as no fee is immune from analysis pursuant this rule. Model fee agreements are available from the MBA Fee Arbitration Board.

Lack of clarity concerning legal fees underlies approximately 10 percent of ACAP inquiries. Words such as “not likely to be greater than” or “estimate” are frequently translated by the client into a flat fee agreement or a ceiling on fees. The problem can be avoided with a written fee agreement clearly spelling out the hourly rate, the services covered (e.g., the client will be billed for your telephone conversations), and the basis for additional costs or expenses. This fee agreement should be followed with periodic itemized bills. At the end of the case, it is especially important to give the client a final bill and to refund any unearned portion of the retainer promptly.

ACAP frequently receives complaints from clients in personal injury and divorce cases who claim they have been or are being coerced into accepting a settlement for an amount far lower than what the lawyer promised at the start of the representation. Lawyers may unintentionally create unrealistic expectations early in the case by using words such as “at least” and “I am pretty sure I can” to describe potential results. Later, any change downward is perceived as the lawyer’s desire to make a quick buck at the expense of the client. The best practice is to be cautious when the client asks you to be prescient.

ACAP also receives numerous complaints from personal injury clients involving misunderstandings as to the payment of medical bills at the end of the case. To avoid this problem, the lawyer should itemize for the client all outstanding bills before the settlement is agreed to. When the settlement is finalized, the lawyer must provide a settlement statement detailing any and all payments (including PIP and med pay) received and expended on behalf of the client. See Mass. R. Prof. C. 1.5(c). Where applicable, this statement should include, perhaps in bold type, the caution that any remaining unpaid medical bills are the client’s responsibility.

Just Say No

Difficult tasks do not get easier with time and bad news does not get better. You do the client no favor by accepting a case that should probably never see the light of day. It is wisest to be honest from the start and decline the case. Similarly, when investigation reveals that a case is not viable, be honest with yourself and the client. If you do not intend to proceed, withdraw while there is ample time for the client to consult another lawyer before the statute of limitations becomes an issue.

When the decision is made either to reject or withdraw from a case, the lawyer should clearly inform the client in writing. Discipline has been imposed on lawyers who fail to clearly communicate a decision not to proceed in a matter which the client believes is being pursued. Do not let this happen to you.

Be Civil

Perceived rudeness is a factor in approximately 6 percent of inquiries to ACAP. Complaints come in from clients, opposing parties, and opposing counsel. Discipline, including public discipline, has been imposed in situations where the conduct takes place before a tribunal or is otherwise particularly egregious.

In instances where the alleged statements appear to reflect an intemperate moment or the incident is isolated, ACAP will simply call the lawyer to insure that he or she understands the effect the conduct has had on a third party and to caution that future similar complaints may be referred for investigation. However, this type of lack of impulse control or poor judgment may be symptomatic of stresses the lawyer is experiencing personally or professionally. Lawyers Concerned for Lawyers (LCL) provides free, confidential assistance in coping with the wide array of problems lawyers face including addiction, depression, financial problems, and balancing work and family. LCL can be reached at 617-482-9600 and 1-800-525-0210. Their web address is www.lclma.org. We encourage lawyers to utilize their good services.

We cannot promise that your clients will never contact the Office of Bar Counsel with complaints about you if you follow these rules, but we do believe that it is far more likely that the problem will be minor and resolvable in the ACAP program without the opening of a formal investigation. For additional information, see “ACAPital Year” in Bar Counsel articles section of our website.



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