When You're a Lawyer, All of Your Advice is Legal Advice
Good Deeds Can Be Costly

by Ann Massie Nelson

LAWYERS, BY NATURE, ARE problem solvers. Give them a sad story and their reflex response is to try to fix the problem - sometimes even before they are asked.

"Lawyers have access to solutions that the general public doesn't have. Often we feel it is incumbent upon us to go out of our way to make life better," says Sally E. Anderson, claims counsel at Wisconsin Lawyers Mutual Insurance Co. (WILMIC).

One shining moment of generosity can quickly tarnish, however, when you discover the legal question falls outside your area of expertise, devours time you can't afford, jeopardizes a personal or business relationship, or slips through your safety net of office procedures because it wasn't "real" work.

What started as an act of kindness then becomes a guilt-filled burden. You procrastinate, reasoning that paying clients should come first. You delegate the task to an associate but fail to follow up. Finally, you're too embarrassed to call the intended recipient of your favor. The next call you get is from the client's new lawyer or the Office of Lawyer Regulation.

"Sometimes, our hearts are bigger than our pocketbooks or abilities," Anderson says.

Courtesy Leads to Malpractice

Two recent claims illustrate how good intentions can go awry.

• A man recommended that his friend talk with his nephew, a lawyer, about a large personal injury case. The lawyer/nephew, knowing he could not bankroll the experts needed to try the case, volunteered to attempt a settlement. When the case did not settle and no law firm was willing to take the referral, the lawyer filed the lawsuit but improperly served the papers. A poor personal injury case became a good legal malpractice claim.
• A couple who were longtime friends of a lawyer dropped by the firm just as the lawyer was leaving for a funeral. The lawyer forgot to make a note about the slip-and-fall accident they discussed. The statute of limitations expired without action and the couple made a claim against the lawyer for malpractice.

"The clients probably never would have made it past the front door if the lawyer hadn't known them," Anderson notes.

What's a Nice Lawyer to Do?

Saying "no" or "I don't know" to people who need help and trust you is very difficult, to say the least. In their eyes, your elite status as a lawyer qualifies you to speak on all aspects of the law.

To respectfully decline requests for favors or work outside your area of practice, Anderson recommends the following:

• Prepare a script for responding to out-of-the-blue requests for information or advice. A mental script is particularly helpful for situations that arise outside of the office, when you are least prepared to respond. Your script might sound something like this:
  
  "That's an interesting problem. I don't come across that in my practice. I suggest you call a lawyer who is experienced in that area of law." Or, "I would like to help you, but I am not comfortable giving you advice without knowing all the facts. Let's schedule a time to meet in my office so I can give your question the attention it deserves."
• Make sure staff members respond to these calls like any new client or new matter. Ask for enough information to check for conflicts of interest and schedule an appointment during office hours.
• Work with staff members to develop a screening procedure and standard response for cold callers who would be better served elsewhere. "Staff can respond to callers in a manner that is polite and welcoming, but protects the lawyer from having to say no," Anderson says.
• Refer people elsewhere. One way to help callers without stretching your own resources is to refer them to the State Bar's Lawyer Referral & Information Service at (800) 362-9082 (see accompanying sidebar) or an advocacy group that offers free or low-cost legal representation.
• Be prepared to tell someone, "I don't know if a lawyer is the right person to answer that question." Some problems simply can't be solved by the legal system.

From the Goodness of Your Heart

If you choose to do someone a favor, acknowledge that decision to yourself. Give the same care and attention to these clients as you do other clients. For example:

• Check for conflicts of interest. The last thing you want is to hear the whole confidential story before you discover you have just disqualified yourself or your firm from representing another client.
• Open a client file. "The pressure in law firms to bring in billable hours is a major reason why lawyers don't open a file. They don't want their partners to know they are doing someone a favor," Anderson notes.
• Enter statutes of limitations and other time constraints in your calendar and tickler system. Schedule time for doing the work well in advance of the deadline.
• Document your work with notes to the file, copies of documents prepared and received, and all correspondence.
• Record your work in your timekeeping system, even if you don't send a bill. Time records document the date and nature of the service. Next time you are asked for a similar favor, you can estimate the commitment involved.
• Recognize that even paying clients don't always heed your advice. While it would be awkward to write a letter documenting your counsel and the beneficiary's decision not to follow it, there may be situations where such a letter is called for.
• Remember, people tend to judge the value of a product or service by how much they paid for it. Other folks find it difficult to admit they need a helping hand. Try to remain gracious, even when people don't show the gratitude you might expect.

Wisconsin Lawyer