Recent Disciplinary Case Statistics reveal that the top cause of grievances is neglect. Almost half of the grievances received by Office of Disciplinary Counsel involve neglect and/or lack of communication. Other areas of concern involve excessive fees and IOLTA violations.
It is also notable that “of those cases that find their way to formal disciplinary charges, almost all of them will have an underlying mental health or substance abuse component that contributed to the behavior.” See Can Wellness Help Prevent Misconduct? By Joseph Caligiuri, Ohio Disciplinary Counsel.
Here are some best practices that lawyers should implement to help avoid a grievance:
- Ensure competence to handle the representation. Cond. R. 1.1.
- Depending on complexity of the matter, the lawyer must either have the competence to handle the representation or be able to refer the matter to, associate with or consult with a lawyer of established competence.
- Explain and document limited scope representation. Prof Cond. R. 1.2
- Limited scope representation permits less involvement by the lawyer. If the client does not understand and agree that the scope of the representation will be limited, this lawyer’s inactivity may be interpreted as neglect. When engaging in a limited scope representation, the lawyer must use a clearly written fee agreement and explain the representation to the client. See Ohio Ethics Guide: Limited Scope Representation for forms and checklists.
- Manage workloads. Cond. R. 1.3
- A lawyer must control his or her workload so that each matter can be handled competently. If the lawyer cannot handle the matter personally, the lawyer must decide if another lawyer in the firm can do it or if it can be referred to a lawyer outside the firm. However, a lawyer should not take in cases they only intend to refer out to other counsel. See Prof. Cond. R. 7.2(d).
- Keep the client informed about the representation and promptly answer requests from the client for information. Cond. R. 1.4
- Good client communication is key to maintaining effective relationships with clients. See OBLICAlert The Value of Client Communication and OBLICAlert Effective Client Communication – During Representation.
- Clearly outline the representation and the fees and expenses involved. Cond. R. 1.5
- Although not always required under the Rules or relevant law, lawyers should use a written fee agreement and engagement letter to avoid misunderstandings about the services the lawyer will provide. Explaining to the client at the outset the fees and expenses will help eliminate the misperception of excessive fees. See OBLICAlert Billing Ethically to Get Paid and OBLICAlert Fee Disputes
- Implement procedures to protect client confidential data. Cond. R 1.6
- Effective procedures can prevent data breaches and inadvertent disclosure of client confidential data. See OBLICAlert Best Practices – Office Procedure Manual. See also OBLIC Cyber Toolbox
- Establish policies for managing client funds. Cond. R. 1.15.
- Reach out for help for assistance with mental health or substance abuse issues.
- Help is available for lawyers, law students and judges struggling with mental health issues and substance abuse. Ohio Lawyers Assistance Program (“OLAP”) can provide an assessment, give confidential advice about individual problems and provide ongoing support. Lawyers concerned about a colleague can also contact OLAP for recommendations on how to help. Information provided to OLAP is privileged under Prof. Cond. R. 8.3(c).
We hope these recommended best practices will help lawyers avoid grievances. Any policyholder who receives a Letter of Inquiry should contact us to discuss the disciplinary coverage available under your OBLIC policy. See OBLICAlert What You Should Know About Your Disciplinary Coverage. As always, feel free to contact us if we may be of assistance. We’re here to help.
|Gretchen K. Mote, Esq.
Director of Loss Prevention
Ohio Bar Liability Insurance Co.
Direct: 614 572 0620
|Monica Waller, Esq.
Senior Loss Prevention Counsel
Ohio Bar Liability Insurance Co.
Direct: 614 859 2978