Class #5 - LOMAS and the
Florida Bar; Malpractice and
Bar Grievances 1 (Grievances)

LOMAS
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Law Office Management Assistance
Service
Part of The Florida Bar
Founded in 1979 as first such service in
U.S.

Need for LOMAS
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Many practicing lawyers lack training in business and practice management principles

Purpose of LOMAS
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Assist members dealing with all of the business aspects of setting up, managing, merging or closing a professional practice

Focus of LOMAS
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Management principles
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Trust accounting rules
Docket control
Prevention of client conflicts
Integration of technology into law practice
Avoidance of malpractice/grievances

LOMAS Services
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Telephone consultation with practice management staff
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Free and confidential
Reference library services
On-Line Forms
Publication of news articles
Voluntary on-site consultations
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Fee based
Result in detailed and confidential analysis of firm management policy, procedures and issues
Rehabilitation of attorneys experiencing law office management problems

3.
4.
1.
2.
5.
Communication
Delegation
Avoid Paralysis by Analysis
Take Firm Entity Agreements Seriously
Maintain Excellent Client Relations

6.
7.
8.
9.
10.
Manage office and practice
Don’t skimp on technology training
Train staff on policies and procedures
Goal-oriented planning
Exceed client expectations

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Assign disaster program responsibility
Do risk analysis
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Know what could cause a disaster
Select a protection method for each cause
Educate staff
Run a test disaster response
Monitor and update program as needed

Personal Safety Preparedness
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Create written emergency response procedures and give to all staff
Maintain a telephone and/or email tree to contact staff in event of disaster
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Have cell phone numbers if no regular phone service is available
Hold fire drills
Know evacuation routes
Designate pre-arranged meeting spots upon office evacuation

Office and staff security
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Clearly mark office areas closed to public
Escort all visitors in non-public areas
Make sure a staff member is always present in reception area
Know that terminated employees may pose security risk
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Have them turn in all keys, ID’s, etc.
Change all passwords to computers, network phone system, etc.

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Have automatic fire detection equipment in place
Limit or ban smoking in office areas
Store chemicals cleaning solvents safely
Have fire extinguishers in appropriate places, make sure staff knows how to use them

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Avoid storage in underground or low-lying areas
Avoid storage in areas where water or sewer pipes pass through
Avoid storage in areas where roof is prone to leakage
Know how and where to turn off water supply when pipe bursts

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Arrange in advance for substitute temporary office space
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Partner with one of more firms, perhaps one close by in case of fire and a second more removed in case of hurricane or other large scale disaster
Equip and train staff in advance to work remotely at home if necessary
Maintain off-site data backups and copies of personnel records

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Tarps and plastic sheeting to protect from water
Plastic crates for packing (cardboard will be weakened by water exposure)
Fans and dehumidifiers to promote drying
Pumps to remove standing water
Gasoline powered generator for emergency power

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Wet/dry vacuums
Waterproof grounded heavy-duty extension cords
Large plastic garbage containers
Wheeled carts to move heavy items
Cell phones or battery-operated two-way radios
Petty cash (ATM’s may be out of service)

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Emergency food and water supplies
Wet weather clothing like boots, hats, gloves, ponchos, etc.
Essential toiletries

Evacuation essentials
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Copies of insurance policies and contact information for your agent and carrier
The binder or album with your application software CD's including installation codes
Photographs showing your office furniture and equipment (a good reason to buy a digital camera)
Employee and client contact information including telephone, address, and email

Evacuation Essentials (cont.)
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Contact information for your landlord, vendors, utilities, public safety, and emergency management
User names and passwords to access your network, server, computers, web site, email, web mail, etc.
Payroll and bank account information
Credit card information
A handful of blank checks for each of your firm's bank accounts

Problem #6
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How would a new lawyer use LOMAS to help with a start-up law practice?
What other resources would you use?

Class #5 (cont.) Bar Grievances

Conflicts of Interest
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Need to be sensitive to conflicts of interest
Not all conflicts are apparent at beginning of representation
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Need to look forward to anticipated developments in case (witnesses, experts, etc.)
Need to take steps in advance to resolve conflicts or, if not resolvable, decline representation or withdraw

Common conflicts
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Represent two or more plaintiffs against same defendant
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Even where actions are unrelated, there may be a collection-related conflict
Parties with contrary legal positions/theories
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Exacerbated if in same court
Winning for one client often means losing for other

Common conflicts (cont.)
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Partnerships
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Representing multiple partners
Representing both a partner and the partnership itself
Corporations
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Representing multiple directors
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Representing both a director and the corporation itself

Common conflicts (cont.)
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Divorce cases
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NEVER represent both spouses
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Don’t pretend to represent the children unless you are appointed to do so by the court
Decline to represent either spouse if you previously represented both spouses in matters such as estate planning or closely-held businesses
Watch for “shoppers” who meet with lawyers just to disqualify them from representing spouse
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Good reason not to offer free consultations

Common conflicts (cont.)
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Multiple defendants or potential defendants in criminal or civil cases
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Criminal defendants may turn on each other to cut a plea deal in exchange for testimony
Civil defendants may try to shift liability to other defendant(s)
Passenger and driver in auto accident cases
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Owner/driver liability may be issue

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Withdrawal from case
Become object of motion to disqualify
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Heard in open court in front of your peers
May not be able to collect fees due
May have to refund fees already collected
May face disciplinary proceedings or malpractice litigation

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Need to retain new lawyer
Delay associated with bringing new lawyer up to date on case
Delay in court date and ultimate resolution of matter

Resolve conflict
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Better to recognize conflict and avoid working on case than to work on case, then find conflict, and not get paid
Everyone has to “eat crow” (admit mistake) sometime
Better to do so when crow is young and tender rather than when crow is old and tough

Waiver of conflict?
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Conflict does not preclude representation if conflict can be waived
Some conflicts should not be waived
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Such as representing both spouses in a divorce
Always get conflict waiver IN WRITING
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See Foonberg clauses pp 224-227 for sample waiver

Ethics problems
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Avoiding an ethics war is much better than winning one
Collateral damage to your reputation is serious and permanent even if you prevail
The time and effort it takes to win an ethics battle could be better spend on feegenerating client work

Common ethics issues
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Amount of Fee
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Generally must be “reasonable”
If unsure what to charge, call other lawyers with experience in the area
Fee agreement must be in writing
Keep accurate time records

Common ethics issues (cont.)
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Fee Splitting
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Must be disclosed to client
Fee must not increase due to fee-splitting arrangement
Can’t split fees with non-lawyers or, in most cases, with out of state lawyer

Common ethics issues (cont.)
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Fees paid by third parties
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Duty is to client, not person paying fee
Fee agreement should state that duty will be to client, not fee payer, if conflict arises
Common problem when insurance carrier is paying fee for the insured

Common ethics issues (cont.)
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Failure to refund unearned fees
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Fee agreement should be clear that fee is flat or fixed and not dependent on time devoted to matter, continued representation, or result achieved
Dropping client for failure to pay
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Place appropriate clause in agreement letting you get out if client doesn’t pay
Court permission required for litigation matters

Common ethics issues (cont.)
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False billing practices
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Overstating number of hours worked on case
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Often to make up for unrealistically low hourly rate
Misstating who did the work
Billing for paralegal time at lawyer’s rate

Common ethics issues (cont.)
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Depositing fee advance prematurely in to operating account
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Unless the fee is specified as non-refundable
(and meets certain other requirements), fees are not earned until the work is done
Ethical violation to deposit or transfer such funds into firm operating account before fee is earned

Common ethics issues (cont.)
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Suing clients for unpaid fees
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Expect counter-claim for malpractice
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Waiting until malpractice statute of limitation runs may limit counter-claim to amount of fees in dispute
Before you sue, make sure your file is in order and you have done an exemplary job for the client
Consider ADR (mediation or arbitration)
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Juries don’t like lawyers, and especially don’t like suits for fees

Common ethics issues (cont.)
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Lack of a written fee agreement
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No written agreement often means not getting paid or being forced to take less than the full amount billed
Agreement often defines scope of representation, which is important to avoid being pulled into disputes that were not contemplated
Agreement should have client’s signature as well as lawyer’s signature

Common ethics issues (cont.)
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Failure to communicate all settlement offers
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May think offer is totally unacceptable, but must still advise client of offer
Free to offer your recommendation on offer

Common ethics issues (cont.)
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Failure to keep client informed of progress of matter
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Copies of all incoming and outgoing correspondence, pleadings, emails, etc.
Foonberg says “bombard them with paper” at p 542
Client should have a file nearly complete as your own
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Some firms provide nice binders for this purpose at beginning of representation

Common ethics issues (cont.)
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Media advertising
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Follow the three “T’s”
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Truthful
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Tasteful
Tentative
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Do not guarantee results
Most complaints come from fellow lawyers, not clients

Common ethics issues (cont.)
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Indirect media advertising
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Keep yourself in the news
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Frequent press releases trumpeting accomplishments and awards
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Keep a list of all media contacts in your area including email addresses, fax numbers, telephone numbers, etc.
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Recognize when case related publicity may be helpful to you but hurt your client – Avoid crossing this line

Common ethics issues (cont.)
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Nonsolicitation mailings
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Firm newsletters
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Paper and email
Announcements
Brochures
Holiday cards
PR mailings with copies or excerpts of articles about self or firm

Common ethics issues (cont.)
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“No recovery, no fee” advertising
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Client may still be liable for costs, which can be substantial
May also be sanctions or other penalties for non-meritorious filings

Common ethics issues (cont.)
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Selection of firm name
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Many jurisdictions have restrictions on fictitious names
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Often can’t use name that sounds like a research or educational non-profit institution
Can’t always use names of deceased lawyers
Can often use names that describe the nature of the firm’s practice
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“Business Litigation Group”
“Environmental Law Group”

Common ethics issues (cont.)
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Buying or selling law practice
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Many states still prohibit the direct sale or purchase of a law practice
Forming entity for merger purposes, then transferring “goodwill” is a workaround

Common ethics issues (cont.)
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Coaching a client to lie
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Ethical violation everywhere
Some jurisdictions require lawyer to withdraw and blow whistle on client if lawyer is convinced that the client lied

Common ethics issues (cont.)
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Failure to turn over client file when discharged
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Must return to client all property, including documents, that belong to the client
Must provide copies of all other file documents
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Who bears the copying cost varies with jurisdiction, but this can often be specified in the fee agreement

Common ethics issues (cont.)
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Premature destruction of client file
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Should first return documents belonging to client
Must be able to demonstrate compliance with file retention policy
Best to have policy in fee agreement signed by client
Archive paper files on CD or DVD

Common ethics issues (cont.)
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Inadvertent violations of Attorney-Client confidences
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Discussion of client matters in public places
Misdirected mail, faxes, emails
Sending enclosures to wrong person via mail
(or attaching wrong files to email)
Failure to use “Personal and Confidential” on sensitive mail, faxes, email
Not protecting identity of client

Common ethics issues (cont.)
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Failure to teach client confidentiality to:
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Members of lawyer’s family
Independent contractors
Office staff and others who come into contact with case file
Special problem in smaller or close-knit communities

Common ethics issues (cont.)
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Trust account violations
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Overdrawing trust account usually ethical violation “per se” with no defense
Taking client funds for personal use almost always results in suspension or disbarment

Common ethics issues (cont.)
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Getting into business deals with clients
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Never trade fees for a “piece of the action” in a questionable business venture
Foonberg , p 555: “A lawyer who wears two hats has no head”
May move services outside of your malpractice policy coverage

Common ethics issues (cont.)
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Alternative billing methods
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Results-oriented “bonus” fees not permitted in every jurisdiction or in all types of cases
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Florida does not permit results-oriented fees in family law cases because they too closely resemble an impermissible contingent fee

Common ethics issues (cont.)
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Overly “zealous” representation of client
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Rule permitting zealous representation not a blank check to win at all costs
Zealous is not the same as hostile or aggressive
Often results in running up a bill the client is unable or unwilling to pay
Balance duty to client with duty to legal system and duty to society

Common ethics issues (cont.)
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Filing non-meritorious cases
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Failure to adequate investigate facts
Failure to develop a legal theory on which recovery may be obtained
Sanctions can be levied against client, lawyer, or both
Sanctioned client will often grieve or sue lawyer who gave bad advice

Common ethics issues (cont.)
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Communicating with adverse party represented by counsel
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Happens far too often in family cases
Communicating “ex parte” with court or court staff
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Limit communication to procedural issues such as confirming court dates, etc.

Common ethics issues (cont.)
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Suppressing or sanitizing evidence
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Don’t hide discoverable evidence or counsel clients to do so
Don’t alter or “clarify” documents

10 Rules
4.
5.
2.
3.
1.
Discuss fees and expectations with client at beginning of representation
Have written fee agreement
Bombard clients with paper
Return all telephone calls promptly
Be open and honest with bad news for client

10 Rules (cont.)
6.
7.
8.
9.
10.
Hands-off client’s money (no dipping into trust account before fee is earned)
Cooperate fully with substitute counsel when you are discharged
Respond immediately and completely to all disciplinary inquiries
Keep accurate time records
Read and understand your state’s ethical rules and interpretive opinions

Problem #7
What law practice management techniques can be used to minimize the risk of a Bar grievance?