Thursday, May 27, 2010

"Less Than Stellar Customer Relations" Or Something More?

The Oregon Supreme Court imposed a 30-day suspension of an attorney for his failure to communicate with a client named Cohn. The court considered but was unimpressed with the attorney's view that the conduct displayed "poor business sense" but did not amount to an ethical violation:

The accused does not dispute any of the..facts.  Instead, he contends that, if the Bar and the trial panel had a "realistic understanding of trial practice," they would see that his actions amounted to no more than "[l]ess-than stellar customer relations."  In support of that position, the accused asserts that, during the eight-month period between the accused's last communication with Cohn in November 2005 and his July 2006 response to Cohn's letter threatening to terminate the representation, Cohn had to have understood the status of the case.  That is, Cohn had to have known that the Marriott had made no settlement offer, because Cohn would have had to be consulted about it.  In conclusion, the accused argues that there is no bright line concerning how long a lawyer can go without communicating with a client or how many client phone calls a lawyer can fail to return before the failure amounts to an ethical violation.  Here, according to the accused, he clearly did not drop below the standard of what a reasonable lawyer would have done in his circumstances because, he contends, Cohn was not actually harmed by the accused's failures. 

The accused displays a fundamental misunderstanding about what the Rules of Professional Conduct require.  RPC 1.4 requires lawyers to maintain reasonably adequate communication with their clients by keeping clients informed about the status of their matters, by complying with reasonable requests for information, and by explaining matters to the extent reasonably necessary to permit clients to make informed decisions.   Although RPC 1.4 is a relatively new rule in Oregon, a lawyer's duty to communicate with clients was a part of the diligence requirement of former Disciplinary Rule (DR) 6-101(B), which dealt with neglect of a legal matter.  In considering alleged violations of that rule, this court held that failing timely to communicate good or bad news to the client constituted a violation of that rule, as did failing to inform the client about the status of a case. The court also observed, in a case in which a lawyer did not write any letters to his client about the case and failed to return his client's phone calls or respond to the client's requests for progress reports, that neglect of a client and procrastination are violations of professional responsibility. (citations omitted)

In this case, we have no difficulty concluding that the accused's failure to communicate with Cohn went well beyond "bad customer relations" and violated RPC 1.4(a) and (b).  The accused failed to discharge his professional responsibility to keep his client reasonably informed about the status of the case when he did not apprise Cohn about communications with the Marriott, Cohn's health insurer's assertion of recovery rights, or his own judgment that settlement negotiations should not be (and therefore had not been) commenced.  He also failed to discharge his professional responsibility to respond to reasonable requests for information when he ignored Cohn's repeated requests for updates and information about the case and for confirmation of Cohn's understanding of how the case would proceed.  Those requests were reasonable in substance and timing. 

The client was a Florida resident injured outside a Marriott Hotel in Portland. The client slipped. The client fell. The client suffered and sought recompense.

The attorney was given 60 days to wind up his practice. (Mike Frisch)

Bar Discipline & Process | Permalink

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