Practice Points with Mark Scruggs: Ten Mileposts Along the Road to a Successful Representation (and Disengagement)

It has taken me 20 years to identify steps lawyers can take throughout the life of an attorney-client relationship that will help avoid grievances and malpractice claims. You can learn them in a few minutes. Here are 10 steps to help guide your journey.

1. Exercise Good Client Selection
Client screening is an essential part of risk management. When interviewing a potential client, listen to your gut. What is your first impression of the person? Is this someone you feel like you can work with? Identify the red flags. One big one is multiple lawyers before you. Get your potential client's permission to talk to their prior lawyers about why the representation ended. All seasoned practitioners know that sometimes the best case is the one not taken.

2. Set Realistic Expectations
In your zeal to put the best face on your client's case, do not "puff." Avoid the urge to opine on the likely outcome before knowing the full story. At least temper the client's expectations until after you have investigated the case and completed discovery. Then and only then might you give the client some guidance as to how the court would likely decide the case and recommend to your client how to proceed. Discuss them if there are significant obstacles to achieving your client's goals. Please do not gloss over them. That's part of providing clients with an informed understanding of their legal rights and obligations and explaining the practical implications. Rule 0.1 [2].

3. Think About the Likely Outcome Before You Accept the Case
When interviewing a potential client, it may become apparent that you can never achieve the client's goals. As a result, maybe you do not want to take the case unless you manage the client's expectations.

4. Use a Good Engagement Agreement
A lawyer can avoid many obstacles to a successful outcome and a satisfied client with a good engagement agreement. First, deal with fees and costs in detail. Then, if there are legal obstacles to achieving the client's goals, consider addressing those in the engagement agreement. Also, Include a statement that the client has had an opportunity to read the engagement agreement and ask any questions they have before signing the contract.

5. Remind the Client Who Gets to Make Decisions About What!
This is the subject of Rule 1.2. SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY BETWEEN CLIENT AND LAWYER. Clients get to decide the objectives of the representation; lawyers get to decide (with consultation with the client, of course) how the client's goals are pursued. Do not get your respective roles confused and do not let your client get them confused either.

6. Communicate with Your Client
Meaningful and regular communication with your client is key to a successful attorney-client relationship. Rule 1.4 requires that we communicate with our clients. Consider communicating regularly with your client concerning the status of their legal matter even if there is not much going on. Send them copies of everything that comes in or goes out of your office concerning their case. Demonstrate effort on their behalf. A client who feels neglected will not be happy or grateful.

7. Manage the Client With Diminished Capacity
When discussing settlement options, attorney's fees, costs, and other issues, be alert for the client who is just not comprehending what you are trying to explain. Maybe there is a diminished capacity issue at play. Rule 1.14 and Rule 1.6(a) are helpful. I am not talking about the drastic remedy of having a guardian appointed for your client, but I am suggesting these rules give you the leeway to bring others into the conversations without breaching confidentiality or waiving the attorney-client privilege. See Comment [3] to Rule 1.14 ("The client may wish to have family members or other persons participate in discussions with the lawyer. When necessary to assist in the representation, the presence of such persons generally does not affect the applicability of the attorney-client evidentiary privilege."

8. Explain to the Client How Negotiations Work Before You Send a Demand Letter
Speaking of avoiding unrealistic expectations, explain to your client that your initial demand is not what you think their case is worth. Instead, explain that you are starting high, knowing that the other side will start low, and with any luck, you and the opposing counsel will arrive at a settlement that reflects your client's realistic goals. Do not let your client see your first settlement demand in writing before you have this discussion.

9. Prepare Your Client for Mediation
Explain all issues that might arise during the mediation. Remember, the goal is to avoid surprises. Before mediation, thoroughly go over the "warts" on your client's case. Do not let your client hear about them from the opposing counsel or the mediator for the first time. If possible, conduct the mediation far enough ahead of trial or a dispositive motion so that you do not feel pressured to overstep your authority. (See Rule 1.2 and Rule 1.4 concerning the allocation of authority between the client and lawyer.) I have seen many instances where the lawyer was convinced the case would settle at mediation only to have the client reject a reasonable settlement offer on the eve of trial, discovery deadline, or motion for summary judgment. If the lawyer is not prepared to try the case or defend a dispositive motion, he may pressure the client to settle the case. This situation can produce an unhappy client, a grievance, or a malpractice claim.

10. Withdrawing from the Representation
Maybe the representation has not been successful if you are withdrawing, but you want to do it ethically.

• First, ask the client if she will consent.
• Do not throw your client under the bus in the motion to withdraw.
• "Irreconcilable differences" is about the most you should say.
• You should file a motion to continue along with the motion to withdraw if there are any upcoming deadlines.
• Do not take a voluntary dismissal without prejudice without your client's consent.

I hope these ten mileposts will guide you along the path to a successful attorney-client relationship and, if not, a graceful and ethical exit at least.