10 Tips for Avoiding Legal Malpractice

By: Eric M. Jackson, JacksonWhite

1. Conflict Checks

CONFLICT OF INTEREST

“A lawyer shall not represent a client if the representation involves a concurrent conflict of interest, which exists if:

• The representation of one client will be directly adverse to another client.

• There is a significant risk that one or more clients will be materially limited by the lawyer’s responsibilities to another client, former client, a third party, or a personal interest of the lawyer.”

Arizona Rules of Court: ER 1.7

What should a conflict check include?

•Names of all parties to the lawsuit

•Key players

•Witnesses

•Related entities

•Principals of the entities

“Attorney violates rule governing conflict of

interests when he represents two defendants with

conflicting interests in civil litigation and indicates

to one that it is to ‘our’ obvious advantage to keep

the other as friendly as possible.”

In the Matter of a Member of the State Bar of Arizona, John Adair SHANNON Jr., 179 Ariz 52, 876 P.2d 548 (1994)

“Attorney who tells one client that there is possibility of conflict arising and that he would have

to withdraw if it did but who does not explain concept of conflict of interest, what specific conflict may arise, or any of the advantages and risks from

dual representation does not adequately comply with requirement of obtaining client’s consent to

representation.”

In the Matter of a Member of the State Bar of Arizona, John Adair SHANNON Jr., 179 Ariz 52, 876 P.2d 548 (1994)

“Attorney who keeps one of two clients informed of status of litigation and relies on that client to

keep a second client informed violates rule requiring attorney to keep client informed and to

explain matters to client.”

In the Matter of a Member of the State Bar of Arizona, John Adair SHANNON Jr., 179 Ariz 52, 876 P.2d 548 (1994)

2. Don’t miss deadlines.

DILIGENCE

“A lawyer shall act with

reasonable diligence and

promptness in representing a

client.”

Arizona Rules of Court: ER 1.3

3. Follow the Rules of Professional Conduct.

COMPETENCE

“A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and

preparation reasonably necessary for the representation.”

Arizona Rules of Court: ER 1.1

4. Beware of casual communications.

COMMUNICATION

A lawyer shall:

• Promptly inform the client of any decision or circumstance with respect to the client’s informed consent.

• Reasonably consult with the client about the means by which the client’s objectives are to be accomplished.

• Keep the client reasonably informed about the status of the matter.

• Promptly comply with reasonable requests for information.

• Consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.

Arizona Rules of Court: ER 1.4

“Attorney failed to clearly and adequately

communicate with and advise his clients.”

In the Matter of a Member of the State Bar of Arizona, Daniel Armando NICOLINI, 168 Ariz 448, 814 P.2d 1385 (1991)

5. Don’t accept every case.

Red Flags

•Clients changing lawyers

•Unreasonable expectations

•Clients in unexplained rush

•Refusal to pay consultation fee or retainer

•Litigious histories

•Hidden agendas

•Discomfort or awkwardness

DECLINING OR TERMINATING REPRESENTATION

“A lawyer shall not represent a client or shall withdraw from a case if:

• The representation will result in violation of the Rules of Professional Conduct or other law.

• The lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.

• The lawyer is discharged.”

Arizona Rules of Court: ER 1.16

6. Be cautious when doing business with a client.

CONFLICT OF INTEREST

A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security,

or other pecuniary interest adverse to a client unless:

• The transaction and terms are fair and reasonable to the client and are fully disclosed in writing in a manner that can be reasonably understood by the client.

• The client is advised in writing and is given the opportunity to seek advice of independent legal counsel.

• The client gives informed consent, in writing signed by the client, to the essential terms of the transaction.

Arizona Rules of Court: ER 1.8

“It is violation of disciplinary rules pertaining to

attorneys for attorney to arrange loan between

client without revealing dual representation.”

In the Matter of a Member of the State Bar of Arizona, David I. KALI, 116 Ariz 285, 569 P.2d 227 (1977)

“To meet the full disclosure requirement of rule regulating a lawyer’s business relationship with his client, the

lawyer must give the client that information which he would have been obliged to give if he had been counsel

rather than interested party, and the transaction must be as beneficial to the client as it would have been had the

client been dealing with a stranger rather than with his lawyer.”

In the Matter of a Member of the State Bar of Arizona, Robert T. NEVILLE, 147 Ariz 106, 708 P.2d 1297 (1985)

“A lawyer entering into a business relationship with a client must not only give a full explanation of the

divergence in interest between the lawyer and the clientand an explanation about the need to seek independent

legal advice, but must also give a detailed explanation of the risks and disadvantages to the client which flow from

the relationship.”

In the Matter of a Member of the State Bar of Arizona, Robert T. NEVILLE, 147 Ariz 106, 708 P.2d 1297 (1985)

7. Fee Agreements

FEES

“A lawyer shall not make an agreement

for, charge or collect an unreasonable

fee for an unreasonable amount of

expenses.”

Arizona Rules of Court: ER 1.5

“If at conclusion of a lawyer’s services it appears

that a fee, which seemed reasonable when agreed

upon, has become excessive, attorney may not

stand upon the contract but must reduce the fee.”

In the Matter of a Member of the State Bar of Arizona, John F. SWARTZ, 141Ariz 266, 686 P.2d 1236 (1984)

8. Document client identity.

9. Document the scope of your work.

SCOPE OF REPRESENTATION

A lawyer shall abide by a client’s decisions

concerning the objectives of representation and

shall consult with the client as to the means by

which they are to be pursued.

Arizona Rules of Court: ER 1.2

ALLOCATION OF AUTHORITY BETWEEN CLIENT AND LAWYER

A lawyer is not required to pursue objectives or employ means simply because a client wishes them to do so.

A lawyer and a client may disagree about the means to accomplish the client’s objectives. If it is impossible to

come to an agreement, a lawyer may withdraw from representation.

The client may authorize the lawyer to take specific action on the client’s behalf without further consultation.

Arizona Rules of Court: ER 1.2

10. Document key decisions.

Questions?