Malpractice and Ethics Claim Avoidance for Business Lawyers

Transcription

1 Malpractice and Ethics Claim Avoidance for Business Lawyers Author Michelle Lore, Claim Attorney Minnesota Lawyers Mutual Ins. Co. About Minnesota Lawyers Mutual Founded in 1982 by members of the Minnesota State Bar Association, Minnesota Lawyers Mutual Insurance Company (MLM) provides professional liability insurance and risk management services for the legal community. MLM is committed to being an efficient, accountable and permanent practice management resource, exemplified by an AM Best rating of A- (Excellent), and the payment of a policyholder dividend for each of the past 20 years. If you are searching for a stable provider of legal malpractice insurance and useful practice management information, Minnesota Lawyers Mutual is the resource you need. Visit our website at or call us at to (800) to learn more about Minnesota Lawyers Mutual. Published by: Minnesota Lawyers Mutual 333 S. Seventh St., Ste Minneapolis, MN (800) (800) Fax 2012 Minnesota Lawyers Mutual Insurance Company All Rights Reserved.

2 Malpractice and Ethics Claim Avoidance for Business Lawyers When the economy is in a slump and business deals are going badly as a result, clients inevitably want someone to blame. Unfortunately, it s often the lawyer the one with the deep pocket in the form of a professional liability policy. Even a client who seemed happy with your legal services can turn ugly when confronted with a business loss. Avoiding these types of claims is a matter of risk management and practice management. While it s not possible for lawyers to prevent a malpractice or ethics claim from ever being asserted against them, adhering to the following tips can help to at least minimize the risk. I. Maintain a conflicts-of-interest database and use it! Rule 1.7 of the Illinois Rules of Professional Conduct prohibits lawyers from representing a client if the representation involves a concurrent conflict of interest, that is, if the representation of one client will be directly adverse to another client, or there is a significant risk that the representation will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. A personal interest includes an equity interest in a client s business or a commercial relationship with a client s business enterprise. Some lawyers, particularly those in small firms, mistakenly believe that all that is required when it comes to determining if a conflict exists is a brief moment of thought, comparing one client s circumstances to another. But reliance on memory alone is not a reliable or advisable strategy. Regular use and proper maintenance of a good conflicts-checking system is imperative to avoiding malpractice and ethics claims based on conflict allegations. The conflictsof-interest database should be regularly updated and searched every time a new client comes in to the office. When new parties are brought in to a matter, the database should be checked again. Establishing a reliable system to catch potential conflicts of interests is relatively easy and maintaining it should be seen as an ongoing commitment to securing your clients trust. It doesn t have to be high-tech or even computer-based, although those systems may conduct a thorough check more quickly than a manual system. All that is required is a complete, well-maintained list of names, a commitment to ensuring that the conflict-checking procedure will become part of the firm s routine, and a requirement that all firm members are trained in the system. It s important to note that the discovery of a conflict doesn t necessarily mean the representation is doomed. The rule allows the representation if, 1) the lawyer reasonably believe that he or she will be able to provide competent and diligent representation to each affected client, 2) the representation does not involve a claim by one client against another client the lawyer represents in the same proceeding, and 3) each client gives informed consent. (While the rule in Illinois does not require the consent be in writing, it is strongly advised.) In many cases, it may be prudent to engage outside assistance in resolving conflict questions because the lawyer may be too close to the situation to be objective. 2

3 A good conflict-checking system assists attorneys in locating, recognizing and properly dealing with a potential conflict of interest, thereby helping to avoid an ethical complaint and prevent an otherwise innocuous malpractice claim from looking much worse. II. Identify the client and memorialize the scope of representation. Many malpractice claims stem from a lawyer s failure to clearly identify his or her client when handling a matter involving multiple parties, such as the creation of a corporate entity for individuals seeking to become business partners. Unless the attorney is clear who he or she represents and adequately identifies and memorializes the scope of that representation, this situation can become a malpractice mess. For example, an attorney is retained to set up a small business owned by three individuals, and over time is called on to provide representation and advice to the business. The attorney advised the individuals at the outset that his role is limited to representing the business. Eventually, the business falls on hard times and two of the partners blame the third partner for the entity s poor performance. They go to the attorney looking for advice on how to squeeze out the third partner, which they eventually do. When the third partner learns that the attorney advised the others on the force out, he sues, alleging, among other things, that the attorney had a conflict of interest. While the attorney verbally advised the business partners at the beginning of the representation that his role is limited to representing the business, he failed to clearly define and memorialize the exact scope of the representation in either a letter or retainer agreement. He also failed to work only within the scope of that representation by advising the individual partners on personal matters. III. Don t represent multiple parties. Lawyers should make it a practice not to represent more than one party in a matter, as that representation may lead to a conflict of interest. For example, the comment to Rule 1.7 indicates that a lawyer asked to represent several parties who wish to form a joint venture is likely to be materially limited in the lawyer s ability to recommend or advocate all possible positions that each might take because of the lawyer s duty of loyalty to the others. The concern is that the conflict may foreclose alternatives that would otherwise be available to the client. While the possibility of harm does not itself require disclosure and consent, the critical questions are 1) the likelihood that a difference in interests will eventuate, and 2) if it does, whether it will materially interfere with the lawyer s independent professional judgment in considering alternatives or foreclose avenues that reasonably should be pursued on behalf of the client. Similarly, lawyers should not represent both sides to a transaction. It s far too easy to say yes when a longtime client and his children walk in to the lawyer s office and ask the lawyer to prepare documents to transfer the family business to the kids, or draft the paperwork necessary to effectuate a real estate transaction from the father to the son. If the deal goes bad, or the parties have a falling out, they are bound to come back at the lawyer claiming a conflict of interest in representing all of the parties to the transaction. While it can be difficult to do, especially when 3

4 the lawyer has known the clients for years, the best and safest course of action is to insist that each of the parties obtain separate counsel. If the clients strongly resist the notion of separate counsel for the transaction or the formation of the business entity, the lawyer should fully discuss the possible conflicts and the lack of confidentiality between the parties. The lawyer should also advise the clients to seek independent counsel as to the joint representation. If the clients continue to insist on the joint representation, and the lawyer reasonably believes that he or she will be able to provide competent and diligent representation, the lawyer must obtain informed consent from each affected client. IV. Avoid entering into business contracts with clients. Rule 1.8 of the Illinois Rules of Professional Conduct proscribes a broad range of conduct, much of which deals with attorney self-dealing, and gives fair warning to attorneys that getting involved with clients in any capacity other than legal advisor is dangerous. That includes activities such as investing in a client s business, accepting stock in lieu of fees or making loans to clients. While not strictly prohibited by the ethical rules, entering into any kind business deal with a client or acquiring an ownership interest that is adverse to a client is never a good idea. But for lawyers who decide that it s worth the risk, they should still tread carefully. The rule identifies the circumstances under which a business transaction with a client may be acceptable. Essentially, such an arrangement may pass muster if 1) the terms of the transaction are fair and reasonable to the client and are fully disclosed in writing; 2) the client is advised in writing to seek the advice of independent counsel on the transaction; and 3) the client gives informed, written consent to the essential terms of the transaction and the lawyer s role in the transaction. The rationale behind the rule is clear. As the comment states, [a] lawyer's legal skill and training, together with the relationship of trust and confidence between lawyer and client, create the possibility of overreaching when the lawyer participates in a business, property or financial transaction with a client, for example, a loan or sales transaction or a lawyer investment on behalf of a client. If the transaction goes bad at some point, rest assured the lawyer s involvement in the deal will be carefully scrutinized, and the lawyer may end up facing an ethics or malpractice claim by the client. Thus, lawyers are advised to follow the letter of the rule carefully. Unfortunately, while the requirements of the rule are straightforward and often achievable, many lawyers don t jump through the necessary hoops, mistakenly believing that their relationships with their clients are resistant to discord. The number of malpractice and ethical complaints relating to attorney dealings with client shatters this myth. Rule 1.8 proscribes other questionable conduct by lawyers as well, including providing financial assistance to a client, accepting compensation for representing a client from someone other than the client, and acquiring a proprietary interest in the subject matter of a client s litigation. With limited exceptions, these activities should be avoided, as in all of them the lawyer runs the risk of becoming embroiled in a conflict-of-interest situation. 4

5 V. Be cautious when serving on client boards or any boards! Being asked by a corporate client to serve on its board of directors or as an officer puts an attorney in precarious position. The Illinois Rules of Professional Conduct do not specifically prohibit lawyers from simultaneously acting as legal counsel and serving as officers or directors in corporate clients, but several rules, including 1.7, 1.8 and 1.13, do proscribe involvement with clients that will jeopardize a lawyer s duties of loyalty, confidentiality, communication and competency. When outside counsel becomes an officer-director in a corporate client, which is sometimes done just to keep the client, the attorney s independence is diminished. When asked to assume such a role, attorneys are advised to provide full disclosure of the conflicts of interest and potential loss of attorney-client privilege. Often, that is enough to discourage a client s request, but it if isn t, the lawyer should nonetheless consider declining the offer anyway. Involvement with corporate clients in any capacity other than as legal counsel is risky, and is best avoided. Many lawsuits are brought against officers and directors, and attorneys and their law firms run the risk of not being covered in most instances. It s also a good idea for law firms to establish policies and procedures with respect to attorneys serving as officers, directors or employees of any outside for-profit or not-for-profit business enterprise. If a firm is going to allow such activities, at a minimum it should require the attorney to procure directors and officers liability insurance, and prohibit the attorney from providing legal services to the business enterprise. The firm should also refrain from providing legal services to the business entity employing the attorney. If legal services are provided, the attorney should be prohibited from supervising those services. These are just a few of the missteps that exist for attorneys who regularly practice business and commercial law. For those who aren t careful, falling into these traps may not only result in an ethical complaint, but a malpractice claim as well. So take heed, become familiar with the Illinois ethical rules, and follow the tips identified above. Michelle Lore is a claim attorney with Minnesota Lawyers Mutual. She can be reached at [email protected]. Much of the information for this article was taken from MLM s Practice Management Series Booklet, Avoiding Conflicts of Interest. 5