The Unhappy Client

Posted on December 2, 2014 08:03 by Steve Crislip

The ABA Journal recently reported that an unhappy person filled a pick-up with gas, bales of hay and propane and then drove it into a law office.  They surmise it was intended to be an explosive device that did not detonate and instead killed the driver who apparently was very unhappy with the law firm’s work for his girlfriend.  That was an extreme example of the unhappy legal relationship.  

Well we have all lost potential or existing clients, but hopefully far less dramatically.  I do submit we lawyers do not pay enough attention to the “why” when a typical client’s unhappiness leads to a departure.  A better understanding of the loss might just prevent others.  We need to provide reliable, prompt and efficient service for our clients, who provide most of our return business.  Don’t do that and guess what — former client.  Thank goodness it is rarely as bad as the truck example, but it still is not a good business event when a client leaves because they are dissatisfied.  When you look at the unhappy client, it is amazing how simple some of the reasons can be.  It does not have to be as stupid as sending a Fed Ex package to your client UPS either.

I believe much of the unhappiness results from the really simple human nature things that make you personally angry daily.  Yet, perhaps you and your staff may be doing some of the same things to your own client base.  These common sense good business manners causes can be fixed to prevent client unhappiness.  It just requires a version of quality control.  You may think this is so basic that I should not have to deal with that on a staff level.  That appears to be the problem — the professionals do not realize what is going on with clients before they get to you.

When training staff and young lawyers, I stressed to them the reaction they have to bad service in a fast food restaurant, with airline travel, or with waiting in a doctor’s office. They get angry, they leave, and they quickly lose their loyalty in response to the above.  The same is true with law offices that put clients on hold and then drop their call, treat them badly, keep them waiting, or even worse don’t promptly respond to their calls or e-mails.  Always think how you react and try, try, try to provide professional services as you would expect your grandmother to get if you had referred her to a colleague.  This grandmother approach will keep claims at bay because clients will be far more reluctant to make a claim over a simple, honest mistake when they have been treated courteously, fairly and promptly by you throughout.  But even more importantly, they are less likely to jump ship at a simple slight.

Take time to train your staff, not only the new ones, but periodically the existing staff.  Polite, prompt and professional should be the standard which is reinforced by all.  Stress to them the need for confidentiality and the heightened work environment for professionals in which they are employed.  They will not get sanctioned, but you could lose your ticket for some misrepresentation or bad act by them.  “Hire Slowly and Fire Quickly” is also the human resource mantra when you have staff issues relating to this quality issue. 

All this is pretty simple commentary.  You would think it doesn’t need to be said.  When you depose plaintiffs in a legal malpractice claim, you hear a lot of these very simple things come out, and they are preventable by good business sense and manners.

This blog was originally posted on Lawyering for Lawyers. Click here to read the original entry. 

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Last month, the Philadelphia Bar Association Professional Guidance Committee issued Opinion 2014-6, which served as an important reminder that client names cannot be shared with third parties – even third-party payors – without the client’s consent.  The inquiring attorney had been paid a flat monthly retainer by a union to provide certain legal services to union members. When the union decided to terminate its arrangement with the inquiring attorney, it asked the attorney to provide a list of all union members who were current clients, ostensibly to notify them that legal services would be provided through another law firm going forward.

Notably, the inquiring attorney’s contract with the union did not require the attorney to provide the identity of union members or their families who were utilizing his or her legal services. Moreover, a union-issued pamphlet stated that the attorney providing legal services would have an attorney-client relationship with the member or dependent receiving legal services and stated that the attorney “shall maintain the confidentiality of the attorney-client relationship in accordance with the applicable professional standards.”

Opinion 2014-6 began by explaining the difference between privileged information (analyzed under the attorney-client privilege) and confidential information (analyzed under the ethical doctrine of confidentiality).  Whereas client names typically are not considered privileged information, they are confidential information that cannot ethically be shared with third parties unless allowed by Rule 1.6 (of Pennsylvania’s version of the Model Rules of Professional Conduct).

The Opinion noted that Rule 1.6 contains no exception allowing the attorney to provide a list of current clients to the union, even though the union was paying the lawyer to provide legal services to them. The Committee determined that the union’s desire to notify its members of the law firm change did not qualify as an implied authorization necessary to carry out the representation because all union members had already been notified by the union of the law firm change.

The Committee found additional support in Rule 1.8(f), regarding conflicts of interest with third-party payors, and in a union-issued pamphlet.  The Committee explained that Rule 1.8(f) requires attorneys who are paid by third parties to maintain the confidentiality of information protected by Rule 1.6.  Considering the requirements of Rule 1.8(f) and the union pamphlet language requiring attorneys to maintain client confidentiality, the Committee concluded that the requested disclosure of client names was impermissible.

The Committee provided some sage advice at the close of the Opinion, recommending that attorneys accepting payment from third parties should explain to their clients: (1) what information the attorney is required to disclose (and to whom) in exchange for the third party paying for legal services; (2) that the client has the right to allow, limit, or prohibit the attorney from providing otherwise confidential information to the third-party payor; and (3) that limiting or prohibiting the attorney from sharing confidential information with the third-party payor could result in the third party refusing to pay and the client being responsible for legal fees.  The Committee also advised that the attorney confirm the client’s informed consent on these issues in writing to avoid any confusion.  Good advice.

Russell Yurk is an AV-rated attorney with Jennings, Haug & Cunningham, LLP in Phoenix, Arizona. His practice focuses on professional liability, lawyer discipline, and complex civil litigation. Mr. Yurk serves as the Chair of DRI’s Lawyers' Professionalism and Ethics Committee and is an active member of the State Bar of Arizona’s Committee on the Rules of Professional Conduct and the Arizona Supreme Court’s Judicial Ethics Advisory Committee. He has spoken at more than 50 seminars on professional conduct and ethics and, in his spare time, he works as a replay official with the National Football League.  Mr. Yurk can be reached at (602) 234-7819 or The views expressed herein are his own.

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"Curiouser and Curiouser"

Posted on May 28, 2014 04:26 by Peter R. Jarvis

Or so said Alice in Wonderland when she was "so much surprised, that for the moment she forgot how to speak good English".  I had much the same reaction when I read brand new Texas Formal Ethics Op 642 (2014).

The opinion holds that it is ethically impermissible for a Texas law firm to give the title "Chief Executive Officer" or "Chief Technology Officer" to a non-attorney because it means either that these non-attorneys own part of the firm (which they cannot) or, if they don't, that the firm is engaging in "conduct involving dishonesty, fraud, deceit or misrepresentation" by holding out these non-attorneys as if they were attorneys.
This cannot even be called a triumph of form over substance.  The opinion does not cite any authority for the proposition that any client, non-client or bar disciplinarian has ever actually been misled into thinking that a "Chief Executive Officer" or "Chief Technology Officer" at a law firm was or is a lawyer-owner of a firm, let alone that someone could or might be injured by such a misunderstanding.  There certainly are many CEOs and CTOs who work for companies in which they have no ownership interest, and the plain understanding among lawyers (if not also others) is that law firm CEOs and CTOs are not and need not be lawyers. 
Would it help if we changed the titles of these key non-attorney employees to Non-Lawyers Engaged in Reporting to (Authorized) Decisionmakers, or NERDs for short?  We could then have a NERD CEO and a NERD CTO.  Or might that be an improper suggestion that these individuals have nerd-like skills that they may not possess?

Peter Jarvis is a partner practicing in the area of Legal Ethics, Risk Management and Regulation at Holland & Knight LLP in Portland, Oregon.  He is a member of DRI's Lawyers' Professionalism and Ethics Committee.  The views expressed herein are his own.

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According to this April 13, 2014 article on, a prominent U.S. law firm has come under fire for agreeing to represent very unpopular clients. The suit, brought on behalf of two California Japanese Americans and a corporation, was filed to stop the display of a memorial to World War II era victims, commonly referred to historically as comfort women.  By their litigation, the clients seek to prove their legal point, in part, through the apparent argument that the comfort women–sex slaves used by the Imperial Japanese Army in World War II–were volunteers.  The suit seeks removal of the memorial, arguing the plaintiffs would suffer feelings of exclusion, discomfort and anger otherwise.

Aside from its controversial substance, this story is a reminder that someday we may be asked to represent an unpopular client who makes socially and/or historically controversial arguments. When faced with the issue, what do your rules of professional conduct mandate? Each jurisdiction has its own set, but many rules are based on the ABA Model Rules of Professional Conduct, which provide that:

Lawyers can represent unpopular clients;
An individual lawyer may be disqualified from representing such a client under certain circumstances; and 
The individual’s disqualification would likely not be imputed to his or her entire firm.

Regarding the representation of an unpopular client, Rule 1.2 and its official comments state that legal representation should not be denied to those “whose cause is controversial or the subject of popular disapproval”, and, representation of a client “does not constitute an endorsement of the client's political, economic, social or moral view or activities.”  

However, a lawyer faces an ethical conflict of interest if there is a “significant risk” that the lawyer’s representation of an unpopular client will be “materially limited” by the “personal interest of the lawyer.”  Such a conflict arises where the issue has a sufficiently effect on the lawyer's judgment.  See Rule 1.7(a)(2).  Under Rule 1.7(b), such a conflict can be cleared if certain conditions are met, chiefly that the client gives informed consent and the lawyer reasonably believes that he or she can “provide competent and diligent representation” to the client.

Finally, under ABA Model Rule 1.10(a)(1), an individual lawyer’s disqualification under this type of personal interest conflict is not imputed to the entire firm unless it presents “a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.” The comments to this Rule explain that one lawyer's “strong political beliefs” would not disqualify the entire firm, as long as the lawyer did not work on the case and his personal beliefs “will not materially limit the representation by others in the firm.” 

While these rules provide guidance on the ethical aspect of representing the unpopular client, they of course do not delve into the more practical question—will representing this unpopular client using your legal services to establish highly controversial views damage your firm’s reputation? For that issue, you are on your own. 

Matthew Haydo is an associate practicing general litigation at Spilman Thomas & Battle in Charleston, West Virginia. He is a member of DRI's Lawyers' Professionalism and Ethics Committee. The views expressed herein are his own.

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ABA v. NSA: An Unhelpful Exchange

Posted on March 26, 2014 03:31 by Brandi Blair

The Edward Snowden scandal brought to light evidence that the National Security Agency obtained information from foreign intelligence services, which included privileged attorney-client communications between U.S. law firms and their foreign clients.  

Concerned about this discovery, the American Bar Association (ABA) sought clarification from the NSA. In correspondence to the NSA, ABA president James Silkenat underscored the importance of the attorney-client privilege as the “bedrock legal principle of our free society.” In essence, privileged attorney-client communications facilitate the “full and frank discussion between lawyer and client that is essential for effective legal representation.”  As our interests continue to globalize, this full and frank discussion increasingly involves electronic and voice communication with foreign clients. Although many of us would welcome an excuse to increase our global travel, it is simply not feasible for US law firms to limit their communications with foreign clients to in-person interviews. 

Given the disturbing evidence that the NSA retained information obtained from privileged communications, Mr. Silkenat requested that the NSA fully explain its policies pertaining to the collection and use of such information. A full understanding of the NSA’s policies and procedures, regarding the collection, retention, and use of privileged communications, is necessary for law firms to meet their ethical obligations to safe guard the confidentiality of client communications.     

NSA Director, General Keith Alexander, responded that he appreciated “the opportunity to clarify [the NSA’s] current policies and practices.” Unfortunately, in the response that followed, the NSA fell short of the open dialogue contemplated by the ABA’s request. Instead, General Alexander’s response attempts to reassure the bar that the agency is “firmly committed to the bedrock legal principle of attorney-client privilege.” According to General Alexander, potentially privileged communications are examined on a “case-by-case basis to determine whether the information is in fact privileged and, if so, the appropriate steps to be taken.” This response does not offer guidance, or the specificity necessary for attorneys to take adequate precautions to safeguard their client confidences, or to rest assured that the information is being appropriately safeguarded by the intelligence agencies.

Until the time that the NSA provides a more substantive response, and in the wake of this exchange of correspondence, it remains unclear what reasonable steps attorneys can take to adequately safeguard their foreign client communications. It appears the options are to trust foreign and domestic intelligence agencies, or start banking more flight miles abroad.  Either option is potentially costly to law firms, and their foreign clients. 

Brandi Blair is an attorney at Jones, Skelton & Hochuli in Phoenix, Arizona. She concentrates her practice on § 1983 defense, professional liability, and wrongful death and personal injury defense. She is currently the Publications Chair for DRI's Lawyers' Professionalism and Ethics Committee.  The views expressed herein are her own.

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The growing industry of litigation funding will be expanding further very soon.  Reuters reported last week that well known former federal prosecutor Andrew Stolper of Santa Ana, California, will open a litigation financing firm.  The new company will be based in Irvine, California and will specialize in funding plaintiffs in commercial litigation cases.  Firms like Stolper’s loan money to plaintiffs in exchange for a percentage of any recovery.  The loans typically do not have to be repaid if the plaintiff does not recover.  

Litigation financing is a very controversial practice.  In 2011 the New York City Bar Association issued a formal opinion stating that it is not unethical per se for a lawyer to represent a plaintiff with a non-recourse financing agreement.  However, the same opinion pointed out that there may be a loss of confidentiality due to sharing privileged information with the litigation finance company. The opinion states “a lawyer representing a client who is party, or considering becoming party, to a non-recourse funding arrangement should be aware of the potential ethical issues and should be prepared to address them as they arise.”

In addition to the various ethical concerns, one of the practical ramifications of litigation financing is that it can often complicate the resolution of a case by settlement since the funding company will typically have a lien against the proceeds, minimizing the plaintiff’s net recovery via settlement.  Many mediations fail because of such liens.

Stolper enters his new business with a history of having been strongly criticized by a federal judge in 2009 for engaging in a “shameful” effort to intimidate witnesses.  Further, his partner in the new venture, Peter Norrell, is a former FBI agent who pled guilty in 2010 to illegally accessing FBI records and threatening criminal prosecution to assist a friend in a debt collection matter.  He received two years of probation and three months of home confinement for that incident.  Apparently, Norrell and Stolper have worked together in the past and they bring their experience to the questionable litigation financing industry.   

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It is a deposition question that too often surprises lawyers and corporate-witness deponents.  Upon return from a water or lunch recess, the deposing lawyer asks the witness: “So, tell me what you and your company’s lawyer discussed during the break?”  Can the deposing lawyer ask that?  Does the defending lawyer have an attorney-client privilege objection?

In-House and outside counsel focus their deposition preparation on reviewing the notice-of-deposition topics, selecting the most appropriate corporate employee for the deposition task, and preparing that witness with the boilerplate deposition ”dos and don’ts.”  And while many lawyers defending depositions see every break as an opportunity to consult with the witness, they neglect to consider whether these in-deposition consultations are privileged and, importantly, to prepare the witness how to answer an out-of-the break question about those consultations.

Unfortunately, there is no uniform rule on whether lawyers may have privileged conversations with witnesses during deposition breaks.  Some jurisdictions prohibit all during-the-break consultations except when necessary to assert an evidentiary privilege.  Other jurisdictions reject this draconian rule for the more practical approach of permitting break-time discussions except when a question is pending.  In my recent article, Protecting Attorney-Corporate Witness Consultations During Deposition Breaks, published by Inside Counsel, I explore the various rules on this issue and provide practical tips for preparing lawyers and witnesses for this inevitable happening.

You may access the article at this link.  How does your jurisdiction–state or federal–handle this situation?  Place your comments in this post–perhaps we can gather the local rules, judicial rulings, and local practices so that others may find answers in a single forum.

As originally published at 
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Terry Baynes of Thomson Reuters has an interesting article on efforts by a few plaintiffs’ attorneys to “crowd source” consumer arbitration claims.  The effort arises out of the Supreme Court’s decision in AT&T Mobility v. Concepcion, 131 S.Ct. 1740 (2011), upholding class action waivers in mandatory arbitration clauses.  The article discusses how two plaintiffs’ attorneys have created a website to generate consumer interest in filing multiple arbitration claims against a company with the stated goal of overwhelming the company “with hundreds or thousands of claims.”   The article quotes one of the founding lawyers as saying, “If it happens enough, companies will want class actions again.” Andrew Pincus, who represented AT&T Mobility before the Supreme Court, is quoted as calling the site “marketing front for plaintiffs’ law firms.”  Mr. Pincus discussed Concepcion at DRI’s 2011 Class Action Seminar in Washington, DC.  DRI will hold the next edition of the Class Action Seminar on July 25 and 26, 2013.  That program is expected to include discussions of the Supreme Court’s current term’s class action and collective action cases.  More details on that will follow soon.

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Bank of America’s new plan to seek reductions in its legal fees from certain outside law firms have some experts questioning the ethics of this unusual practice.  The bank is seeking a credit on its annual legal fees based on the amount of customer business it sends to the law firms.  According to the report, Bank of American has threatened to stop using law firms that refuse to sign onto the one year deal. 

The Bank of America agreement is believed to state that the credit sought is calculated based on the total amount of legal fees passed on to third-party customers.  Bank of America generally does not comment on specific arrangements with its legal providers; however, a source familiar with the agreement said that, the credit being sought is relationship based rather than percentage based. 

Cornelius Hurley, Director of the Boston University, Center for Finance, Policy, and Law opines that if the agreement is based on the amount of fees paid by customers, such an arrangement would be unethical and a “form of pay to play for the law firms.”  University of California’s Hastings Law School professor, Geoffrey Hazard explains that the agreement seems to violate the American Bar Association’s rules of Professional Conduct in a least two ways: (1) the bank is getting a reduction in legal fees; (2) and there is a referral in return for money.  

Not everyone sees this as an ethical issue.  Thomas Spahn, a commercial litigation partner at McGuireWoods in Virginia, said his law firm accepted the agreement and does not an issue.  He does not share the concern that this arrangement violates the rule that “a lawyer cannot give anything of value” to someone who sends him business.  Spahn’s reasoning is that “most law firms will give benefits to a company that sends them a lot of work such as free legal seminars or cocktail parties.”  He justified this position by stating that the agreement is sound as long as the credit is not tied to a particular fee. 

Bank of America does offer some notice to its customers that it is receiving a benefit.  Hurley feels the notice is “too vague and not a full-fledged disclosure...” and Hazard comments that “its getting the reduction that matters, not who knows about it.” 

The bank defended the agreement in a statement issued to Corporate Counsel.  “We do not require clients to retain particular law firms and we are committed to transparency in disclosing fee arrangements, as well as, potential benefits to our company.  We are confident that our agreements with external legal services providers are appropriate.”  Eric Cooperstein, a legal ethics practitioner in Minneapolis sees this agreement as raising serious ethical concerns as the rules do not have an exception for client consent.  “Quite simply, a legal client’s business cannot be bought and sold.”  




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An astounding four out of ten Americans have been invited to participate in a class action suit. Fifteen percent, the equivalent of 36 million people, actually participated in one, and most do not appear to be doing it for the money. Of the 70 percent receiving a financial award, 73 percent termed it insignificant. Their motivation might lie in the fact that 65 percent thought class action suits made corporations more responsible. These are some of the surprising results from the DRI National Poll on the Civil Justice System.

The poll also showed that large numbers of Americans doubt the fairness of civil courts and a majority— sometimes substantial majorities— admit that personal biases could affect their decisions as jurors.

In terms of confidence in the civil courts, only nine percent of respondents indicated that they were very confident that the results in civil courts are “just and fair” while 16 percent expressed no confidence that the results were fair. Eighty-three percent say that the side with the most money for lawyers usually wins. This holds true for all demographic groups: Democrats, Republicans, Independents, liberals, and conservatives. On the other hand, the 58 percent who expressed confidence in court decisions places the civil courts far ahead of Congress, the presidency, and even the church in other recent confidence polls.

Perhaps more troubling is the fact that majorities of respondents freely admitted that, in certain instances, their personal biases could affect their decisions as jurors. For instance, 57–59 percent say they would be inclined as jurors to favor individuals in cases against an insurance, oil, or financial company. Fifty-two percent said that if they had a bad consumer experience with a litigant, it could influence their decision as a juror.

In an interesting and perhaps counterintuitive response, the poll found that 64 percent prefer jury trials to bench trials even though 48 percent feel juries make decisions based upon personal opinion rather than facts and the law. Alternatively, 69 percent feel that judges base their decisions on facts and the law rather than personal opinion.

In an encouraging response, 75 percent of Americans see jury service as a civic duty rather than a burden and of those who had served, 81 percent say the experience was a positive one.

The above findings come from an independent, nonpartisan, national telephone survey conducted in August 2012 among a random scientific sample of adults. It employed rigorous methodology and balanced question wording to assess public attitudes on issues in civil law. It was conducted by Langer Research Associates, New York. Gary Langer is the former head of polling for ABC News and subscribes to the Code of Professional Ethics and Practices of the American Association for Public Opinion Research and the Principles of Disclosure of the National Council on Public Polls.

For the full report of the national survey as well as downloadable graphs and charts, please click here to go to the website for DRI’s Center for Law and Public Policy. For purposes of transparency and accessibility, a full data set of the survey and methodology will be available to journalists and researchers through the Roper Center for Public Opinion Research at the University of Connecticut.

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