California Bar Journal
OFFICIAL PUBLICATION OF THE STATE BAR OF CALIFORNIA - MARCH 2000
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ETHICS BYTE

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Protection: A written agreement
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Diane KarpmanThe idea of a new millennium seems so dated, and yet it’s only March. (And yes, I know it’s really and truly next year.) Right now may be an appropriate time for you to review your forms (how boring) and update them to prevent potential problems. Why not start at the source of most lawyer discontent, the fee agreement? As of Jan. 1, you no longer need to make any disclosure regarding the absence of errors and omissions coverage (malpractice insurance). So, immediately drop the previously required disclosure clause, which could have planted negative thoughts in the minds of your clients and possibly made them excessively litigious.

Then there is the seductively intricate issue of e-mail communications, one which the legal ethicists have been massaging for the last five years. Is it confidential or not, since it passes through servers, potentially waiving confidentiality? A recent ABA Ethics Opinion (Formal Opinion 99-413), maintains that it is confidential, and therefore does not constitute a breach of the fiduciary duty. Nevertheless, law-yers should use their in-dependent judgment regarding specific circumstances in a particular case. If you are representing Tony Soprano (a known T.V. mobster), it is highly conceivable that his phones are tapped. It would not be too great a stretch to consider that his e-mail might also be monitored. Exercise your independent judgment.

What about cellular telephones and facsimiles? Cells are protected, but be careful with cordless phones since anyone with a baby monitor could be listening (albeit illegally). A fax could expose your client’s whole case to his or her entire office, causing much dissatisfaction and ire. But there are easy solutions to these issues which can be accomplished in the fee agreement.

In California, clients are given substantially greater autonomy, power and participatory rights than in states following the ABA’s Model Rules. Clients can consent to conflicts (Rule 3-310), and they can also consent to waivers of confidentiality. (Consider the “joint client” exception in Evidence Code 962.) Therefore, a client can affirm communication methods or waive issues of confidentiality in the fee agreement.

Remember, a consent is the intentional relinquishment of an appreciated right, and it is only effective if it is informed. The discussion regarding the preferred means of communication is also a good client-relations or diagnostic tool, giving you the ability to gauge your client’s level of technical sophistication. A simple box could be checked by the client, clearly indicating assent of a particular mode.

The fee agreement is the only opportunity you have to control or structure your future happiness. Initially, written fee agreements were promoted as consumer protection tools. If the truth were told, they are more often protective devices for lawyers. Written fee agreements make it difficult for a client to demonstrate selective memory, or assert claims which are unsupported by the terms of the agreement. But, as we all know, with the “client from hell,” it can still happen.

Diane Karpman specializes in lawyer law. She can be reached at 310/887-3900 or karpethics@aol.com.