Tag Archive for: State Bar of Arizona

By Daniel W. Hager

Corporate Counsel, Ahern Insurance Brokerage.

Written for 2021 issue of Arizona Attorney Magazine

Effective communication with clients is not only ethically required but it substantially reduces risk to lawyers.  A very large percentage of malpractice and ethics claims arise from poor communication.

Documenting advice to clients and their directions about the representation is not required by Arizona’s ethical rules in every situation.  There are exceptions, such as getting informed written consent in a conflict situation.  However, failing to document advice and client directions can substantially increase the risk of – and exacerbate – malpractice and ethical complaints.

ER 1.2 of the Arizona Rules of Professional Conduct require that “a lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by ER 1.4, shall consult with the client as to the means by which they are to be pursued.”

ER 1.4(a) requires that lawyers must “(1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in ER 1.0(e), is required by these Rules; (2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.”

Lawyers may not take significant action without a client’s knowledge and consent, especially regarding settlement offers or other important decisions that must be made.  These rules require lawyers to generally abide by client decisions and to communicate effectively with clients.  They do not require that those client decisions and communications be documented in writing.  However, it is always the best practice to make a written record of such decisions by, and communications with, clients.

Particularly regarding major strategic decisions, settlements, and other important decisions that are not documented, if the matter ultimately goes badly for the client there is a significant risk that recollections may differ.  For example, a client may insist on a course of action the lawyer believes – and tells the client – will have adverse consequences for the client.  If those consequences come to pass – and the lawyer has not confirmed in writing the advice given, the client’s refusal to follow that advice, and the client’s insistence that another course be followed – the client may blame the lawyer for the bad outcome.  The client may even claim the lawyer decided the course to take without the client’s input or consent, or that the lawyer consciously refused to follow the client’s direction.

Without a writing memorializing the lawyer’s advice and the client’s directions, it becomes the lawyer’s word against the client’s in any later dispute.  Such “lawyer said/client said” situations increase the risk of bad outcomes in both ethics grievances and malpractice claims.

One effective way to communicate and document limits on a lawyer’s authority and obligations is to use written engagement agreements that clearly spell out the scope of the representation.  Equally importantly, they should specifically identify areas outside the scope of the representation, such as providing tax advice.  Well-drafted engagement agreements documenting the scope of the representation offer the additional benefit of the client having signed them as understood and agreed to.

Some clients may present situations where even carefully documenting important communications is not enough.  For example, a client may insist on taking actions the lawyer knows are criminal and seeks counsel’s advice on how to avoid being caught.  Or a client may direct the lawyer to take other unethical actions.  In such situations, documentation of communications is critical, but withdrawal from the representation altogether is the wisest course and may in fact be required under the applicable ethical rules.

Fortunately, most clients do not present such extreme situations.  But for any client, the lawyer is well-advised to memorialize or confirm all important client decisions and communications in writing.  Some situations may require a lengthy letter or memo to the file.  In other situations, a brief email confirming the client’s direction or consent to take a particular action is sufficient.  The key is to memorialize such important communications in writing.

Good communication with clients generally, and about major decisions in particular, will greatly reduce the risk of ethics grievances and malpractice claims.  Creating a written record of those communications provides lawyers with a critical additional layer of protection.

Gayle has been a business litigator for decades.  She recognizes litigation was not the best fit for her personality, but she did it well and was a fine lawyer.  It provided a solid income for her family, which she had cherished – even though her work pulled her away and played a role in her divorce.

The conflicting demands of trying to be the best mother and the best litigator took its toll on Gayle.  Recently, whenever the phone rang, or an email or text arrived, she started feeling dread: more work to be done or maybe a criticism of her work.  She felt less able to keep up, more ineffective, and less productive.  She felt more cynical, isolated, forgetful, and less able to concentrate.  Every problem – at work or home – felt serious, even if it was not.  She felt exhausted constantly and had trouble sleeping.  She dreaded going to work, and never felt recovered after a weekend or a rare vacation.  While she had always felt like a successful, accomplished person, she had begun to feel she was failing, professionally and personally.

Most frighteningly for her, the anxiety attacks she first experienced in law school had returned with increasing frequency and severity – so terrifying that thoughts of suicide had even crossed her mind.

In addition to Gayle’s symptoms of burnout, other symptoms include: ongoing stress and crises; feelings of isolation and helplessness; irritability; excessive feelings of responsibility, inadequacy, and self-doubt; obsessive thoughts; guilt about missed personal activities; inability to balance heavy work and family responsibilities; reluctance to say no; sweating, heart palpitations, and feelings of panic; and self-medicating with alcohol and other substances.

The Cost

While Gayle felt alone in her despair, she was not.  As in other high stress fields, burnout is a serious problem in the legal profession, not only in terms of individual lawyers’ misery, but in the resulting harm to their firms and, sometimes, clients.

For lawyers, untreated burnout can lead to – or go hand in hand with – physical and emotional problems like depression, anxiety disorders, and substance abuse.  Compared to other professions, lawyers suffer very high rates of depression, substance abuse, and suicide.

Burnout also creates real problems for law firms.  Lawyers suffering burnout are unhappy, less engaged, less productive, and at greater risk for making errors that could result in malpractice claims or Bar complaints.  Firms also risk losing good lawyers too soon, costing substantial amounts to hire, train, and make new lawyers part of the team.

The Causes

Lawyers’ inherent personality traits, along with the adversarial, high pressure nature of the work, create a perfect incubator for burnout.  Lawyers tend to be perfectionists, setting impossible to meet standards for themselves and the sense that nothing is ever good enough.  Lawyers are also trained to be on the constant lookout for problems and to be responsible for taking care of clients.  This inherent pessimism over what might go wrong creates a sense that problems are everywhere, the true urgency of which becomes exaggerated.  Lawyers also often fail to seek out help when needed, not wanting to appear weak.  They also face constant deadlines set by the courts, other parties, and clients, over which they have very little control.

Law firms, in turn, rarely foster an atmosphere where a lawyer experiencing burnout would feel comfortable exposing – and getting help for – what could be perceived as weakness.  Law firms are competitive places, with increasing demands for greater productivity at lower cost, and with limited, highly competitive opportunities for advancement.  New technologies also add pressure on lawyers, who feel constantly tethered to their work and client demands.

Prevention and Treatment

Lawyers and their firms can work together to promote a healthier approach for lawyers and, in turn, greater success for firms.  Individual lawyers (and firms, through wellness programs and thoughtful institutional changes to discourage a workaholic culture) should strive for: healthy diet; sufficient sleep; meditation; regular exercise, including yoga and walking; learning to say no, to set realistic work boundaries, and to protect time fully away from the demands of work, including regular vacations; dropping difficult clients; learning to express one’s feelings and concerns to someone who listens and cares; pursuing personal interests that bring satisfaction; and better protecting a healthy work/life balance generally.  In serious cases, lawyers can ask to take a leave of absence, change jobs, or even change careers.

Arizona lawyers have very helpful resources available through the State Bar’s Member Assistance Program, including its Peer Support Network, Support Groups, and Crisis Hotline.

Burnout is a serious occupational hazard for lawyers.  But, with the help of their firms, lawyers can strive to avoid feeling trapped and hopeless by taking the right steps to regain a healthy, balanced life.

(Article originally published in Attorney at Law Magazine – Phoenix Edition, Volume 11, Number 5).

*No portion of this article is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only.

By Daniel W. Hager | Corporate Counsel, AHERN Insurance Brokerage

Daniel W. Hager is Corporate Counsel to AHERN Insurance Brokerage and has spent his career practicing in the fields of lawyers’ professional liability, risk management, and legal ethics.

Stories about massive computer hacking appear with increasing frequency. The perpetrators include state actors, sophisticated criminal operators around the world, political groups, and disgruntled employees. Victims of cybercrime include major corporations, political campaigns, and government agencies. Unfortunately, lawyers are not immune from this phenomenon!

It is challenging to keep pace with rapidly changing technology and sophisticated cybercriminals. There are, however, steps that will significantly reduce your risk of data breaches.

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