 The 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.
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