OBLIC policyholders who call our loss prevention hotline often pose questions concerning whether or not to undertake or continue representation in a variety of circumstances. Let’s look at some of these situations.
Inquiries about accepting representation frequently involve an email from a purported out-of-state client prospect, often representing themselves in a way that gives them perceived credibility, such as stating that they are top level management in a company seeking to buy a piece of equipment or collect a debt. The email might even reference a local company or a familiar entity.
When these emails are received the lawyer should carefully examine the email address of the sender. The email address will often mimic a legitimate business. Further questions should be asked about how the potential client learned of the lawyer. If the person located the lawyer by a random internet search, be cautious! In our experience, these requests for representation are most often scams. If the lawyer requests a fee agreement and retainer, a check often shows up at the lawyer’s office from the alleged adverse party even before the documents are executed (this check is almost always fraudulent).
The potential client will then indicate great urgency in getting the money distributed from the lawyer’s trust account, (even permitting the lawyer to take a fee). Clearly, funds should never be disbursed from the trust account until the lawyer is certain that the funds are in the account and available for distribution (i.e. actually collected and received from the issuing bank) – NOT that the check has “cleared.” If funds are paid from the lawyer’s trust account through this fraud, the lawyer will be out of pocket for any amounts provisionally credited to the trust account from the fraudulent check.
Out of State Representation
Another question involves whether a lawyer can represent an Ohio client in an out-of-state matter. The Ohio client may ask the lawyer for assistance in purchasing a piece of real estate in Florida or handling an estate in Florida for Ohio adult children whose parent has died in Florida. Unless the Ohio lawyer is also licensed in Florida, it is generally not a good idea to undertake this representation. Out-of-state co-counsel can provide competent legal advice regarding that state’s laws.
Outside Area of Practice
A potential client may ask a lawyer to undertake representation in an area of law related to, but not quite in, the lawyer’s area of expertise or in an area of law the lawyer doesn’t practice in very much or at all. While Rule 1.1 Competence allows a lawyer to gain the skill to undertake representation, that’s not usually part of the plan. In this situation, the lawyer will be giving the client the best service by co-counseling with a competent lawyer or providing names of attorneys who DO practice in that area of law. We’ll remind you again, don’t dabble!
Questions about continuing representation usually arise when dealing with difficult clients or conflicts of interest. The difficult client is often one who has not paid the lawyer and/or is refusing to follow the lawyer’s advice. Hopefully, the lawyer has an executed fee agreement that addressed these potential situations.
Non-payment of Legal Bills
Failure to timely pay the lawyer’s invoices or replenish the retainer should be addressed as soon as it occurs. If the invoice is not paid by the next monthly billing, the lawyer should contact the client to determine if the client has a financial crisis or problem with the lawyer’s services that is affecting payment. The lawyer can then determine whether to stretch out the terms of payment or whether to terminate the representation.
It is also important to timely decide whether to continue the representation when dealing with a difficult client who refuses to follow the lawyer’s advice. It is especially important to stay on top of these situations if the matter is in litigation, as waiting too long may result in the judge not allowing the lawyer to withdraw. If the decision to terminate representation is made, Rule 1.16, Declining or Terminating Representation. must be carefully followed.
Conflict of Interest
Conflicts of interest can arise during the representation when the lawyer discovers a previously unknown conflict, not detected by the original conflicts check, when a new conflict develops, or when the situation changes when representing multiple parties. Conflict analysis is very fact specific and will require careful consideration of whether the conflict is waivable, and if so, whether informed consent can be obtained. The bottom line is: Who is my client? If there are any competing loyalties, it’s likely the lawyer will not be able to continue the representation.
If you have situations like these are others, please give me a call. We are here to help before things go awry!
Gretchen K Mote, Esq.
Director of Loss Prevention
Best Practices when Accepting or Continuing Representation
- Determine if the request for representation is legitimate
- Ask how the potential client located the lawyer
- Use a written fee agreement and get a retainer
- Don’t dabble!
- Co-counsel with competent lawyer for other practice areas and out-of-state matters
- Address failure to pay issues
- Timely consider options to withdraw from representation
- Analyze conflicts of interest and follow necessary steps to avoid problems