Denver Bar Association
December 1999
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Lawyers Can be 'Shocking'

by Diane Hartman

 
 

"Of the 6,000 calls they get each year, neglect of a client and failure to communicate are at the top of the list."

Six months ago, before Nancy Cohen was appointed Deputy Attorney Regulation Counsel, she had a trial practice and often defended lawyers in front of the grievance committee.

Now, she’s on the other side, and has taken to using words like "shocking" and "surprising" about some things that lawyers do to get in trouble.

"Shock" would describe her reaction to a lawyer who advised his client to ignore a court order and then who later took the stand and admitted he told his client not to follow what the judge said.

"Surprising" would apply to several lawyers who were supposed to hold money in trust until their clients signed a document. The clients promised to sign and asked for the money – they got the money but never signed. Opposing counsel then wanted the agreement. "It’s only a deal if it’s signed," she said.

For at least a year, grievances in Colorado have been handled in a different way (see The Docket, September 1999) and The Colorado Lawyer, January 2000.)

Due to new rules, the Regulation Counsel now gets cases where lawyers don’t pay their child support. "If they’re in arrears and they don’t meet an exception (like they’re getting a court-approved plan or have filed a motion to modify, etc.), we have to file a petition for immediate suspension," Nancy said.

Another new rule is that banks have to notify them if someone is overdrawn on their trust account. "The rule went into effect July 1 and we’ve had 140 notifications since then." She said they’ve had to investigate only a few because there are often bank errors and other mistakes. Sometimes a cautionary letter is sent out saying "you’re dealing with other people’s money — be careful."

Of the 6,000 calls they get each year, neglect of a client and failure to communicate to a client are at the top of the list.

"The worst is when somebody is just taking money and is neglecting the client and the practice. For some, it may be an alcohol or drug problem or mental illness like depression. For some, the lawyer is new and hasn’t had any mentoring. They get in a high-volume practice and get overwhelmed."

She has some words of advice that won’t surprise anyone:

"Return those phone calls. I remember hearing a lawyer on the grievance committee in the early ’80s saying ‘you should never see the sun set twice before you return a phone call.’ That’s very good advice.’’

What’s hard to do, she said, "is put yourself in the client’s place. They think this is your only case. They’re anxious, terrified and sometimes unsophisticated. You may not have time to return all the phone calls, but you can get someone to call and say when you’ll be available. There are ways to communicate."

The first meeting with a client is critical, she said. "If clients walk in the door and you think you don’t want to represent them, don’t! If you do take them, it’s important to set up realistic expectations and explain how cases progress, and that there are lulls. Set out a fee agreement and explain that you charge for phone conferences. Put it in writing."

Nancy said she is surprised by what some lawyers do: "You want to sit them down and say ‘what were you thinking’???"

But the truth is "most lawyers don’t have problems. We see a small percentage of lawyers who have significant problems and we get a lot of complaints against those lawyers – sometimes 30 or 40 each over a period of time. The complaints are usually from clients."

The new system is working well, Nancy said. "If you believe in education—and I do—this teaches lawyers to think about what they do. For people who’ve engaged in minor neglect or misconduct, where the client hasn’t really been harmed, we’ll do diversion agreements. In the old system, it would have been a public censure or less. Our hope is, if they’re sent to ethics school (or any other diversion program), we can address the problem and we won’t see them again."

If readers have any comments about the new grievance process, The Docket would like your feedback.
Send to: dianeh@cobar.org.

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