Problem Clients How to Handle Them and What to Do If

the State Bar Gets Involved

Speakers

Jessica L. Beckwith Lewis Brisbois Bisgaard & Smith

Russ Roeca Roeca Haas Montes De Oca

Jessica Beeler Lewis Brisbois Bisgaard & Smith

Steven B. Piser Law Offices of Steven B. Piser

Wednesday, October 23, 2019

Location: BASF Conf. Center • 301 Battery St., 3rd Floor • San Francisco, CA Event Code: G194109

Problem Clients

How to Handle Them and What to Do If the State Bar Gets Involved

Panelists Bios

Jessica L. Beckwith Jessica.Beckwith@lewisbrisbois.com Jessica Beckwith is a partner in the Los Angeles and Phoenix offices of Lewis Brisbois and a member of the Professional Liability and Real Estate & Environmental Practices. Ms. Beckwith’s practice is focused on attorney regulation and ethics, and her experience includes advising attorneys and law firms on matters relating to bar charges in Arizona and State Bar complaints in California, as well as fee disputes, disciplinary matters, disqualification issues, bar admissions, and other licensing, ethics, and professional responsibility issues.

Russell S. Roeca rsr@rhm.legal Russ Roeca is a founding partner of boutique AV rated Roeca Haas Montes De Oca LLP. He is certified by the State Bar of California as a specialist in Legal Malpractice Law and his practice principally focuses upon professional liability of attorneys. He is a former co-chair of the State Bar Committee on Professional Liability Insurance and is also a mediator certified by the Bar Association of San Francisco.

Jessica Beeler Jessica.Beeler@lewisbrisbois.com Jessica Beeler is an associate at the San Francisco office of Lewis Brisbois and a member of the Professional Liability Practice. Her practice focuses primarily on the defense of attorneys and other professionals in litigation matters, and she also represents attorneys in State Bar proceedings.

Steven B. Piser Law Offices of Steven B. Piser

Steven Piser’s practice is focused on legal malpractice, trusts and estates, and complex business litigation, representing both plaintiffs and defendants. Mr. Piser has been a Certified Specialist in Legal Malpractice Law since the inception of the specialty area in 2011. He has had cases throughout the Bay Area and California, as well as federal courts in the Central, Northern, and Eastern Districts of California and Arizona State Court. He has tried over 60 cases, jury and non-jury, in state, federal, and bankruptcy courts.

1) How to stop problems before they start 2) What to do if things go wrong

Problem Clients

(1) The scope of representation (CA Rule of Professional Conduct 1.2; B & P Code section 6148) (2) Duties to prospective clients (Rule 1.18) (3) Declining or terminating representation (Rule 1.16) (4) Fee disputes (Rule 1.5 & 1.15) (5) Withdrawing as counsel (Rule 1.16) (6) Social networking and blogging

Common Ethical Issues

• Common areas where client disputes arise

• Client Complaints

• State Bar Proceedings

Outline of Presentation

• 1. “You’re the third lawyer I’ve been to.” • 2. “Let me tell you: this is a no brainer, a slam dunk.” • 3. “It’s the principle.” • 4. “Why is that important?’ • 5. “My cousin had the same kind of case, she got [___ result]” • 6. “I don’t care what it costs.” • 7. “This shouldn’t cost more than $500, right?” • 8. “I’ll do the research for you.” • 9. “They’re not going to try this case.” • 10. “All I hear from you are ‘yeah buts.’ Are you representing the other side?”

“Red Flag” Phrases from your Potential New Client:

• 11. “Don’t bother calling my last lawyer. He didn’t know what he was doing.” • 12. “My friend the lawyer was helping me, but he couldn’t fix it so...” • 13. “I am emotionally unstable/I had a breakdown.” • 14. “I have talked to several other lawyers and they tell me my case is great.” • 15. “Why do you need the whole retainer up front, you don’t think I’m good for it?” • 16. “All you’ll need to do is file [an answer/complaint] and they’ll go away (or

cave). There won’t be much work.” • 17. “I was on a jury…” • 18. “I have been involved in multiple lawsuits so I know how this all works.” • 19. “I don’t care what it costs.” • 20. “I am a lawyer.”

More warning signs…

• has questionable motives; • is a know-it-all who will be hard to lead; • is cheap and/or cannot afford your services; or • has unrealistic goals and/or is mentally unstable.

These phrases can be a warning of a potential client who:

• To create an effective and productive attorney-client relationship, you need to:

– foster an atmosphere of mutual trust and honesty – establish ground rules for communication – manage the client’s expectations regarding the potential

outcome of their case.

Creating the Attorney-Client Relationship

• Clearly define the scope of representation (Rule 1.2 & B & P

Code 6148) • Send bills/invoices regularly • Create reasonable expectations • Promptly return calls and emails/Provide regular updates (Rule

1.4) • Understand your client’s needs

Client Communications: Keep your clients happy

• Case that involve many parties, which create the possibility of conflicts (Rules 1.7-1.10)

• Cases that are highly publicized (Rule 3.6) • Electronic communications (Rule 4.4 re

Inadvertent Disclosure)

Other Ethical Considerations in Client Communications

• How to handle a client you don’t like

• Hazards of withdrawal

• Ethical withdrawal – no “noisy” withdrawal (Rule 1.16)

Declining or terminating representation

An attorney “shall” withdraw if continued representation would violation a rule of professional conduct or some other law, the lawyer cannot adequately represent the client, or the attorney is fired by the client. Rule 1.16 (b) is broad in scope and apparently gives significant discretion for permissive withdrawal.

Permissive v. Mandatory Withdrawal

• Avoiding prejudice to client • What you may reveal as the reason for withdrawal

vs. what must remain confidential • Recent opinion: State Bar Committee on

Professional Responsibility and Conduct Formal Opinion No. 2019-198: May an attorney who must withdraw because the claim lacks merit ethically settle the action before withdrawing?

Other Issues Regarding Withdrawal

• Have a good engagement letter • Maintain effective communication • Avoid inadvertent fiduciary potholes • Diligently maintain the client file • Know your exposure and maintain adequate

malpractice insurance

General Best Practices to consider

1. Duty of the professional to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise;

2. A breach of that duty 3. A proximate causal connection between negligent

conduct and resulting injury, and 4. Actual loss or damage resulting from the

professional negligence

Elements of Legal Malpractice

• There’s a solid fee agreement and client was informed in writing about when happens if they lose

• Client was informed in writing of potential conflicts • Client was kept up to date of major decisions • Billing appears to be a complete record of all work • Rule 1.4(a) (3): keep a client reasonably informed of

“significant developments.”

What discourages a potential plaintiff from pursuing a malpractice claim?

• Legitimate complaints vs. “problem clients” just being nasty

• Billing tells the story. • Maintain integrity of the file

– Separate work product from non-work product. – Another lawyer may request a file from you before you

get sued, but work product belongs to you prior to that time.

When Client Sue Attorneys

Negative Online Reviews:

• In the absence of waiver of confidentiality and the attorney-client privilege by a former client, there is no statutory exception to the duty of confidentiality (Rule 1.6) or the attorney client privilege (Cal. Evidence Code section 952) that would permit an attorney to defend himself or herself by disclosing confidences or privileged information.

How to Handle Complaints

• Duty of Confidentiality under California Business and

Professions Code section 6068(e)(1) – Protects current and former clients CRPC, Rule 3-100(A)

• Rule 1.6 Duty of Confidentiality – encompasses all information learned from client during the representation – very broad

• Attorney-client privilege under California Evidence Code section 950, et seq.

How to Handle Complaints

In Los Angeles County Bar Association Opinion No. 525, issued on December 6, 2012, the issue was whether a lawyer could respond to a former client who posted a derogatory message about the attorney on the internet. The opinion concludes that the attorney can respond to the posting so long as the response:

» does not disclose confidential information; » will not injure the former client in a matter involving the former

representation; and » is proportionate and restrained.

This doesn’t mean you can’t respond at all…

The Bar Association of San Francisco, in Opinion No. 2014-1 reached a similar conclusion: Attorney is not barred from responding generally to an online review by a former client where the former client's matter has concluded. Although the residual duty of loyalty owed to the former client does not prohibit a response, Attorney's on-going duty of confidentiality prohibits Attorney from disclosing any confidential information about the prior representation absent the former client's informed consent or a waiver of confidentiality.

This doesn’t mean you can’t respond at all…

In Georgia, a state appellate court affirmed a $405,000 verdict in favor of a divorce lawyer who sued a former client for describing her as “a CROOK lawyer” and an “Extremely Fraudulent Lady" on an online local business rating site. A Florida appeals court affirmed $350,000 in punitive damages awarded to a lawyer who claimed that a former client defamed her in on-line reviews.

Respond online vs. responding in court with a defamation lawsuit

• Suing your client is not the best response. • California anti-SLAPP laws are found at Code of Civil

Procedure Section 425.16 et seq. They are designed to protect the public right to petition and free speech in matters of public interest and concern, including in connection with lawsuits, legislation, in public forums and discussions, and generally in matters of public interest.

Anti-SLAPP Issues

• A defamation lawsuit arguably involves “protected speech.”

• A defamation defendant can respond by filing a motion to strike under anti-SLAPP provisions, and: – discovery will be immediately halted pending ruling on the

motion. – the burden shifts to the plaintiff to show, by admissible

evidence, (without the benefit of formal discovery) that plaintiff has a probability of prevailing on his claims.

Anti-SLAPP Issues

• If plaintiff cannot meet the burden of showing a probability of prevailing, the case will be dismissed and the plaintiff will be ordered to pay the defendant’s attorney’s fees in bringing the motion.

• Because anti-SLAPP motions to strike usually involve significant attorney time, the sanctions against losing plaintiffs are often substantial.

Anti-SLAPP Issues

The importance of not letting a client “get behind” Take a large enough advance fee and make it evergreen (meaning you hold it in trust until the final bill)

Fee Disputes

– Take it seriously! – The most common formal charges and how to

respond – The procedural trajectory – The types of discipline

State Bar Proceedings

QUESTIONS?