My Top 5 Tips for Grievance-proofing Your Law Practice
Receiving a grievance does not make you a bad lawyer. Anyone can be grieved, it is not necessarily an indication that you did anything wrong. But fighting a grievance is a difficult process, even if you are ultimately successful. Anything you can do on the front end to prevent the filing of a grievance is well worth the time and effort. With that said, here are my top five tips for preventing a grievance:
1. Understand your communication obligations and document those communications.
There are three aspects of proper client communication:
Keeping the client reasonably informed about the status of their legal matter. The onus is on you to keep the client reasonably updated about their case even if they haven’t requested an update. Always inform a client when something significant occurs, and send periodic updates even when there is nothing to report. Provide the client with case filings and other important documents or correspondence. Be consistent.
Promptly comply with reasonable requests for information from the client. What is “prompt” will vary depending on the situation, but urgent matters call for urgent responses. Strive to return all non-urgent client contacts within 24-48 hours.
Explain matters to the extent necessary for the client to make informed decisions. Make sure the client fully understands the significance of key issues in the case.
It is critical that you document your communications with clients. Save all emails, phone records, communication logs, text messages, etc. Take notes of important conversations with clients, including the date, location, persons present, advice given and instructions received. Send follow-up letters/emails summarizing the discussions.
2. Promptly return the client file after the representation ends.
When the representation ends and the client requests their file, it must be provided to them in full and promptly. If things ended well, the client might be satisfied to wait a few weeks for their file. But often, and especially when things did not end well and/or the case is ongoing, the client expects the file immediately and will not hesitate to fire off a grievance if you delay in providing it. This type of grievance is usually upgraded for further investigation, because there is rarely a legitimate reason for not promptly providing the client file.
It is important that you are keeping client files updated in real time so that, at any point in time, the client could be provided with their file within a couple of days. At most, I would suggest not taking any longer than a week to provide the file absent unusual circumstances.
3. Promptly refund unearned fees.
This issue arises most commonly when there is a fixed-fee representation that ends prematurely, usually because the client has terminated the representation. The client expects a return of some fees because their legal matter has not yet been resolved, but the lawyer argues the entire fee has already been earned, citing the “non-refundable fee” provisions of the fee agreement.
Texas attorneys: flat or fixed fees are not earned upon receipt, even if your fee agreement says so and even if the client agrees to this arrangement. Fixed fees must be deposited into an IOLTA account and must stay there until the legal services for which they were paid are rendered. If a fixed-fee representation ends before the legal matter is resolved, the Bar will expect you to justify any fees kept on a quantum meruit basis. You should work with the client in this situation and provide a reasonable refund if appropriate. Even when you can demonstrate you have put enough hours in to earn the entire fee via quantum meruit, if you have not accomplished much toward resolving the client’s case, the Bar will not look favorably on this calculation. Be reasonable. Avoid a grievance.
4. Manage your caseload effectively.
If you are unable to effectively manage your caseload, you can expect to drop the ball in a client’s case at some point. You may miss a setting, or worse, an important filing deadline. Maybe you don’t miss anything huge, but you consistently fail to meet expectations or promises to clients on smaller issues. Whether you mean to or not, you are letting your clients down and will probably struggle with burnout at some point.
This scenario often is not the result of an attorney who does not care about his or her clients. This typically happens when a lawyer is overwhelmed because they have too many cases and do not know what a healthy caseload is or should be. Often, these lawyers are not charging enough for their legal services and/or are failing to collect fees from clients. This forces them to continuously take on new cases to generate income, without any regard for how busy they are or whether a particular case or client is right for their practice. Neglect is one of the most common allegations in disciplinary cases, particularly among solo and small firm lawyers. There is a lot of help out there for lawyers needing to tackle this issue, from law practice management coaches and resources, to practice management software that can dramatically improve organization and efficiency.
5. Avoid Toxic Clients
What I have learned from representing lawyers in the discipline system is that one of the greatest risk factors for receiving a grievance is taking the wrong client.
I am not talking about a high-maintenance client, or clients who are a bit more demanding and exacting. I am talking about the individual who is truly toxic - someone who will never be happy with your services, will disrespect you and your staff, will attempt to dominate all of your time with excessive and unreasonable demands, and will manipulate and threaten when they do not get their way. This type of person is very likely to grieve you at some point.
The best way to avoid being grieved by this type of client is not to take them in the first place. Vet clients carefully and be alert to red flags.
Are you the second or third attorney they have hired on this case? Are they badmouthing their former lawyer(s)?
Are they disrespecting your boundaries already? Trying to go over your consultation time? Not sending you requested items timely? Complaining about your fees?
Are they treating your staff poorly?
Do they have wholly unrealistic expectations and demands, even after you have explained the realities of their situation?
Do they appear overly controlling? Excessively vengeful?
Sometimes people are good at hiding toxic tendencies during their first meeting with you. If you realize too late that you are working with a toxic client, attempt to extract yourself as soon as you can reasonably do so without material adverse effect on the case. Do not fool yourself into thinking it is best to “ride it out” or “finish what you started.” You are only prolonging matters and adding more potential issues for them to complain about.
As attorneys, we juggle a lot of ethical obligations, all of which matter. However, there are certain issues and scenarios that pop up repeatedly in the grievance process. It's smart for lawyers to be aware of these common pitfalls and tackle them head-on to avoid ending up on the receiving end of a grievance.