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The Hardiest Perennials In
the October 1971 issue of Bench & Bar of Minnesota, Richey
Reavill, the first director of the Office
of Lawyers Professional Responsibility, wrote in this column, “As
of July 31, the new procedures have been in effect for six months.
During that period, almost 45 percent of the complaints which crossed
our desk involved neglect of clients’ business and the failure to
keep the client and others entitled thereto advised as to the status
quo. Neglect and failure to communicate seem to go hand in hand, probably
because the only response the neglectful lawyer can make to an inquiry
is that he has done nothing.” In his October 1972 article entitled
“Communicate!” Mr. Reavill wrote, “Now that
the Court has made it clear that it will not permit lawyers to neglect
their clients’ legal affairs, I hopefully assume that we will receive
no more valid complaints of this type of professional misconduct.”
Such optimism! Perhaps he was just being ironic. In November 1985, William
Wernz, in his first column as director, after also quoting
another of Mr. Reavill’s exhortations, described
neglect and noncommunication as a “hardy
perennial.” He added that “[f]ormer directors
Richey Reavill, Paul Sharood, Walt Bachman
and Mike Hoover all lamented the number of complaints of attorney
neglect and noncommunication with clients.
In 1984, as in 1971, 40-45 percent of all complaints alleged such
failures.” The Office of Lawyers Professional
Responsibility has been in existence for 36 years now, and while some
things have changed immensely, others clearly have not. By a wide
margin, neglect and noncommunication remain the most common source of client unhappiness
and thus of client complaints. A few months ago, in the March 2007
Bench & Bar “Summary of Admonitions,”
I wrote that, “As in most years, the majority of admonitions last
year involved a lack of diligence and/or communication by the attorney.”
Surely, neglect and noncommunication must
be considered the hardiest perennials after so many years without
change. Learning
from History After all these years,
why is this so? Aren’t we supposed to learn from the lessons of history?
By now shouldn’t we recognize procrastination, lack of diligence,
neglect (whatever we call it), when we see it? Do we know it only
when we see it in others, while failing to recognize it in ourselves?
The applicable Rules of
Professional Conduct don’t seem especially difficult to understand.
Rule 1.3 (Diligence) says that “A lawyer shall act with reasonable
diligence and promptness in representing a client.” Equally short,
Rule 3.2 (Expediting Litigation) adds that “A lawyer shall make reasonable
efforts to expedite litigation consistent with the interests of the
client.” On the other hand, a “one
size fits all” application of the rules concerning neglect of a client
matter, or lack of diligence, at least as to setting some definitive
time limit that applies to all situations, is not always possible.
Taking no action on a personal injury matter for over six years, such
that the applicable statute of limitations has expired, certainly
constitutes neglect. But so might failing to file an emergency request
for a temporary restraining order within even one or two days of accepting
the representation, if that was the action and the time frame agreed
to by the lawyer. Missing deadlines? Being a few days late in answering
discovery requests may indicate some lack of diligence, but it would
be unlikely to result in either a motion to compel or sanctions in
today’s litigation. Failing to file an appellate brief such that the
client’s matter is dismissed, however, may bring a motion for an award
of fees and discipline. Missing a scheduled court appearance without
notice is conduct that can generate a complaint. If an innocent office-scheduling
miscue (not really an excuse, and possibly indicative of a different
office-procedures problem) truly caused the failure to appear, however,
the attorney may be given a second chance by the judge and the disciplinary
system. Noncommunication can be just as tricky to pin down, depending on the
circumstances. Not returning one or two phone calls, while a poor
business practice, is often forgiven by the client if an apology is
proffered. Routinely failing to return phone calls or not replying
to correspondence from clients or opposing counsel eventually will
lead to disciplinary problems. How does the lawyer know
when and as to what communication is required? Rule 1.4, Minnesota
Rules of Professional Conduct, requires communication with a client
whenever informed consent is required, and states that the lawyer
shall reasonably consult with the client about the means to accomplish
the client’s objectives, keep the client reasonably informed about
the status of their legal matter and promptly comply with reasonable
requests for information. Further, consultation with the client if
there are ethical limitations on the lawyer’s conduct is required,
as is an obligation to explain a matter to the extent reasonably necessary
to permit the client to make informed decisions regarding the representation. Minimizing
the Risk Since there isn’t a clear
line of demarcation announcing when an attorney’s conduct goes from
“that can happen” to “that simply shouldn’t happen,” the easiest and
best solution is not to put yourself so close to the line that you
need to be worried about it. Proper office management skills are attainable
even for a busy solo practitioner. An office calendar and “tickler
system” for court appearances, meetings and the like are essential.
An assistant who may handle some routine inquiries or return some
phone calls on the attorney’s behalf is certainly permissible and
can help eliminate much client frustration (that said, systematically
making it impossible for clients to get beyond support staff or ever
talk directly with the lawyer may violate the lawyer’s duty to communicate).
These topics are of sufficient importance that law office management
courses are now considered for Continuing Legal Education credit.1 As noted, admonitions issued
for neglect and/or noncommunication remain
common. The annual summary of admonitions published in this column
rarely provides details of these admonitions, however. This past year,
attorneys were admonished for taking almost one year to complete a
QDRO in a marital dissolution matter, taking over two years to complete
a generally uncomplicated estate matter, and putting research on an
issue concerning the sale of a client’s motor home “on the back burner”
(the attorney’s words) for many months. Attorneys who failed to communicate
with their clients for several months at a time, usually despite several
calls or letters from the client requesting (eventually begging) for
a response, also received admonitions. Admonitions are generally appropriate
when the matter is the lawyer’s first valid complaint and the ultimate
financial harm to the client was minimal. Frustration is a given. Believe it or not, the
attorneys in our office would rather see and get to know you through
a helpful advisory opinion discussion or at a Continuing Legal Education
presentation. They’d rather not have to deal with you in the context
of a disciplinary investigation. So, one last exhortation: “Don’t
procrastinate and do communicate!” Do those two things and odds are
we’ll never meet because of a complaint.
MARTIN COLE is director of the Office of Lawyers Professional Responsibility. An alumnus of the University of Minnesota and of the University of Minnesota Law School, he has served the lawyer disciplinary system for 21 years. |
