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Avoiding Ethical Breaches

Imperatives in the Area of Personal Injury Practice

Raymond A. Hein I

n its Preamble, under the heading “Scope,” the Maryland Lawyers’ Rules of Professional Conduct are characterized as “rules of reason,” some of which “are imperatives, cast

in the terms ‘shall’ or ‘shall not,’” while others, “generally cast in the term ‘may,’ are permissive and define areas under the Rules in which the lawyer has discretion to exercise professional judgment.” In order to avoid ethical breaches that may lead to client complaints and potential disciplinary review, lawyers should remember that the ethical practice of law “depends primarily upon understanding and voluntary compliance” with the Rules of Professional Conduct, particularly those that contain the “shall” imperative. Tis article hopefully will serve as reinforcement for most readers of certain key provisions of the Rules of Professional Conduct as they apply to lawyers in the area of personal injury practice.

Getting Started: Client Selection, Shaping Expectations and Fee Agreements

Certain grievances could likely be avoided with a polite

declination. Te Rules of Professional Conduct contain no mandate that a lawyer must accept every prospective client who walks through the door. With intuition and experience, lawyers develop a sense for recognizing the potentially difficult client. A prospective client’s temperament and demeanor during an initial consultation may provide warning signals that this individual will never be satisfied with (1) your communication, (2) the pace at which the case is progressing and (3) your recommendations concerning the value of a claim and (4) how to best proceed. Another red flag to watch for is the prospective client’s

prior representation history, i.e., whether this individual has fired one or more lawyers before coming to you or possibly is still represented by another lawyer who may not know the

client is shopping around. If you have a bad vibe when meeting with a prospective client, often the best decision you can make is simply to decline the representation. Te initial consultation also is an occasion to gauge the

prospective client’s expectations and to start the process of shaping realistic objectives. Someone who does not necessarily transmit the overall bad vibe that would cause you to reject her as a client may still have unrealistic preconceptions of how much she will recover and/or how quickly her claim may be settled. Before you get to talk to her, the client may already have spoken to a cousin, neighbor or co-worker who had a “similar” case and has weighed in with insights that may not apply to this particular client’s circumstances. No claim may or should be evaluated with a specific dollar

figure during an initial consultation. Tat meeting is your first opportunity to curb the enthusiasm of a prospective client who comes in with visions of a six-figure settlement following a relatively minor fender bender. When assessing a case at an initial meeting, the mention of a dollar amount that later does not come to fruition is almost certain to generate client dissatisfaction. A client who feels misled by the lawyer’s failure to deliver a “promised” recovery is more likely to file a grievance in which a variety of other misconduct allegations may be raised. While a client needs to understand the factors that will be considered in determining the damages to which she is entitled, discussion of a specific dollar figure or range should be deferred until sufficient information has been gathered to provide a reasonably informed assessment. Having identified the prospective client as one with whom

there is mutual interest in establishing an attorney-client relationship, Rule 1.5, dealing with “Fees,” contains several imperatives to be considered. As a general rule for all types of legal matters, subsection (b) of Rule 1.5 requires lawyers to communicate to the client “[t]he scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible.” While including the mandate to communicate such information “before or within a reasonable

Trial Reporter / Winter 2012 13

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