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Corporate/Transactional/ Contract

The Dancing Cash Register

Certain events are seasonal. One annual event I like to recall is the annual publishing of the local telephone book yellow pages. Why? Because every year there would be a tide of complaints followed by a trickle when the new telephone book was opened to the Attorney section and readers would find the full page yellow page ad of the dancing cash register with the 24 hour 1 – 800 telephone number of the attorney looking for personal injury cases. How could the State Bar let this happen? What has the profession been reduced to? What was once a noble profession has been reduced to a garish dollar sign (I think some years, in fact, the garish dollar sign was used instead of the dancing cash register – a sketch of an old fashioned cash register with stick legs and arms and I think a little smiling head with a beret on top). What is the State Bar doing to stop this disgusting, base advertising? Alas, nothing. The Supreme Court had spoken: you can't regulate bad taste. If the advertisement is not false, deceptive or misleading the bar cannot prohibit it. Some say the advent of attorney advertising was the beginning of the end of respectful law practice.

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You’re Fired – What are the Client’s Rights with Respect to Their Files?

In my last post, I discussed the obligations of an attorney to respond to a client’s request for a status update, rather than when terminating the relationship.  Here, I discuss the client’s rights to her file upon ending the attorney-client relationship.  

If a client asks for her file, it is not enough to hand it over like a library book and think the matter is concluded.  An attorney has a duty to avoid foreseeable prejudice to her client.  It’s also not enough for the attorney to think once the client reads the file she’ll figure out what to do next and by when it needs to be done.

Even if the attorney is fired and the client does want her file, not everything in that file belongs to the client.  A few examples of file materials that don’t have to be provided are the attorney’s work product, her impressions about the case, or some fantastic and unique form that she created to make her professional life better.  The attorney might have to extract the information from the form and include it some other way.  There also may be confidential records that the attorney cannot turn over. 

Can the attorney make copies of the client file?  Yes.  Can she require the client pay for the copies?  Yes – if it’s in the signed contract.  What if the client has agreed to pay for all copying costs but hasn’t yet – can the attorney hold on to the file until reimbursed?  This if often a problem area; the general answer is no, attorneys aren’t mechanics; they can’t put a lien on the file and hold it until the client pays up.  The attorney should be in no better position than any other creditor of the client. 

If there is no signed agreement on costs, the attorney treads on thin ice to try to make a client pay for copying costs related to protecting the attorney’s own interests.    Hard to argue that the client is bound to pay the attorney’s prospective defensive costs.  Definitely the attorney can keep a copy but she would be safer to pay for the copies.

Figuring out what stays and what goes also takes time and consideration.  What about my caller with his client at the door?  Does he have to just hand over the file?  Even if the attorney is being fired, the attorney needs to avoid foreseeable prejudice to his client’s rights.  The circumstances of each case may dictate how long the attorney can hold on to the file in order to review and copy it.  If it is an active file with imminent deadlines, the attorney is going to have to act faster than a semi-closed case, but if the client is in the lobby in the morning because she’s heard there’s a court appearance in the afternoon, well counsel, start your printer engines.

While it is possible that this attorney-client relationship was running smoothly and suddenly one day the client woke up and decided that she would travel to her attorney’s office and demand volumes of unidentifiable paper, it may be more likely that the client had been giving off signs of unease for some time and the attorney neglected to respond.   That, of course, leads me to say, see my previous blog on returning client phone calls!

Mara J. Mamet

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Whose file is it anyway?

This may be a somewhat apocryphal story, but I’m sitting in my office, working very hard on something (surely) when I am alerted that an emergency is afoot. Upon inquiry, I discover that some attorney, somewhere, has a client at her:

  • doorstep;
  • lobby;
  • front stoop; and/or
  • holding on another telephone line

and, that client is demanding her file. What should the attorney do?

My first response is probably somewhere along the lines of why not give it to her? If she came in asking for something else that belonged to her, she would get it back, right? But that response would not address all of the underlying issues involved in the emergency — not the least of which is what happened to the attorney-client relationship to cause such disrepair that the client is now there demanding her file? Other more practical and immediate issues include, what parts of the file belong to whom and who pays for copies, has the employment or engagement actually ended and/or what else is the attorney supposed to do for the client and who pays for what, or did I mention money already? Someone who has a client in front of them demanding the return of their file pronto probably has something else going on that needs to be addressed, but one crisis at a time.

The Rule of Professional Conduct relating to return of files has been reworked over the years to try to make it more clear what has to be returned to the client: Rule 3-700(D) says that when the employment has ended and the client has requested it, all the client’s papers and property must be released. The rule specifies that client materials include correspondence, pleadings, deposition transcripts, exhibits, physical evidence, expert’s reports, "and other items reasonably necessary to the client’s representation, whether the client has paid for them or not."

What’s that mean? Well, first the attorney must determine whether the request is being made to elicit the status of the client’s matter, or rather, if the client is seeking a termination of the Client-Attorney relationship. If the client is just trying to find out what is going on in her case, then the attorney needs to promptly respond by providing copies of significant and pertinent documents (Rule 3-500).

In my next post, I’ll discuss what the attorney’s obligations are when the attorney’s employment is being terminated by the client ( I refrain from using "fired" in case Mr. Trump has obtained a copyright on that phrase).

Mara J. Mamet

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Return that Client Phone Call the Same Day!

In all the years I worked for the State Bar as a senior attorney for the Office of Trial Counsel, and all the literally thousands of complaints against attorneys I reviewed, I never saw a client who complained that his or her attorney called them too much. I’m asked all the time what’s the number one complaint against attorneys. It’s not that they’re evil or ill prepared, inexperienced or corrupt; it’s that they think that they’ll return that call tomorrow and tomorrow turns into days, weeks, more weeks and in some cases, a growing inclination to not look at the file again until it’s too late. Perhaps the statute of limitations has run, the tolling agreement has expired, the settlement offer is now withdrawn, or the discovery deadlines have passed. As devastating as one of these events can be to a client’s relationship with an attorney or firm, it’s compounded when the client learns about it from someone else – the opposing party, opposing attorney or the State Bar investigator after he or she receives the complaint that an attorney won’t communicate.

A study was done in medical malpractice cases where it turned out that many plaintiffs said they might have been satisfied if the doctor had just come to them, explained what happened and said how sorry they were. Just the opposite of what the professional liability representatives are instructing the doctors. But just as all attorneys are not evil, the same can be said for clients. The client is entrusting the attorney with one of the most important pieces of their life; generally, they want to know how it’s going.

The Rules of Professional Conduct (Rule 3-500) provide that an attorney must keep the client reasonably informed about significant developments. But what does that mean? Certainly the examples I just cited are significant developments. If something happens that makes or breaks the case, the client is going to want to know. On the other hand, the client is hiring the attorney to use his or her best judgment. Some of the friction can be avoided by having a discussion at the outset about what are some of the important events. For instance, one complaint heard regarding failure to communicate is the client saying he found out that his attorney had been to court on his matter and the client knew nothing about it, or the client heard there was a court hearing and the client wasn’t notified. It may turn out that the hearing was simply a status conference or discovery motion but the client complaining to the State Bar is, at least, a strong symptom of something gone wrong in the attorney-client relationship that might very well have been avoided if regular communication had been established earlier on. If the client is learning about incidents through third parties or taking it upon herself to look into the case status, there is something not working. As I said at the outset, clients don’t complain to the State Bar because their lawyer tells them too much.

Mara J. Mamet

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