Wisconsin Lawyer: 101 When a Professional Needs a Professional:

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March 13, 2023

101
When a Professional Needs a Professional

Representing clients who are members of regulated professions demands the same levels of competence and civility any client expects and deserves. But lawyers should keep additional things in mind for clients whose jobs require professional credentials.

Stacie H. Rosenzweig

Similarities and Differences Between Professionals as Clients and Other Clients

Credentialed professionals, in many ways, are a lot like any other clients. Chances are, unless they need help negotiating a new employment agreement or buying a house, they’re not calling a lawyer on their best day or even a good day. They would rather be waiting in line to pay their property taxes; under the sink, unclogging their garbage disposal; or in a clinic getting a colonoscopy: anywhere other than in a lawyer’s office, doing anything other than paying a lawyer to listen to their troubles.

Stacie H. Rosenzweig, Marquette 2009, practices with Halling & Cayo SC, Milwaukee, and focuses on legal ethics, professional responsibility, licensing, and election and political law. She is a member of the State Bar of Wisconsin’s Litigation Section and Professional Ethics Committee and is a Fellow of the Wisconsin Law Foundation.

And, professionals are human beings, with all the attendant emotional variance and illogic. Not only do they not want to be in a lawyer’s office, they might be angry about being there. They’re sad or confused or annoyed or all of the above. The lawyer is the nearest sympathetic listener or target. Sometimes there is yelling. Sometimes there is crying. Sometimes there is stunned silence.

Additionally, money is a concern. How much is this going to cost? Contrary to popular perception, not all professionals can write a five-figure advanced-fee check without blinking – and even those who can don’t want to, and who would, particularly for this? Insurance may or may not help, and the deductible may still be steep.

These concerns are universal.

But professionals as clients differ from other clients in important ways. I say this with all the love and respect in the world for my fellow professionals: We can be a bit intense. We’re stereotypically type A – achievement oriented, competitive, impatient. We feel the need to be in control, and in much of life, we are – clients turn to us for our expertise and decisiveness. But that also means we have trouble turning control over to others. Some of us are micromanagers in our professional lives (for better or worse) and manifest that behavior when represented.

Sure, clients still have a lot of control, including full control of the objectives and input on the means.³ But for many lawyers and other professionals, it’s difficult to let go and let the individual we hired for their own expertise steer the ship. For some professionals, it’s hard to even acknowledge that expertise.

Representing Professionals in a Licensing or Disciplinary Matter

There are different, though related, challenges that emerge when representing a credentialed professional in a licensing or disciplinary proceeding. For many people, professional identity is inextricably tied to personal identity. Our license might be the key to our livelihoods but also a fundamental part of who we are. “So, tell me about yourself.” “I’m a lawyer.” It’s probably the first thing out of our mouths (sorry, kids, we mention it before we mention our families). We’ve worked hard to get to where we are, and a complaint about how we have done our jobs (regardless of whether the complaint has any merit) hits us where it hurts. Dealing with someone whose identity has been attacked can be particularly challenging.

That said, working with credentialed professionals can be a rewarding part of a practice. You get to learn a little bit about a lot of things – the benefits and drawbacks of tankless water heaters or solar electric vehicle chargers or cloud-based veterinary practice management; what patients mean when they talk about a “rotator cuff injury” and why that is different from what physicians mean when they talk about a “rotator cuff injury”; what the Thompson drop-table technique is and when to use it (hint: unless you are a licensed chiropractor, don’t). Even when representing another lawyer, chances are you don’t work in the same practice area or practice law the same way, and there is a lot that can be learned from clients even as they’re learning from you.

Tips for Representing Professionals

Here are some tips for lawyers who take on the challenge of representing other professionals.

1) Learn the Vocabulary. Professionals are typically highly educated, but that doesn’t mean they speak your language (or that you speak theirs). Lawyers may have a basic understanding of anatomy, and physicians may have a basic understanding of the legal system, but chances are these levels of understanding will be superficial to moderate. Don’t hesitate to ask questions.

Just because you were a student once, or have a child in school, doesn’t mean you know what it’s like to be a teacher. So, ask. If a client talks about a “sphenopalatine ganglioneuralgia,” you shouldn’t pretend to know what that is (or surreptitiously look it up on your phone while the client is telling you things you need to know); ask. (It’s an ice cream headache, by the way.)

Likewise, lawyers tend to lapse into legalese, particularly with educated clients. Resist that temptation. As with any representation, tailor your communication and make sure your client can understand you.⁴ This comprehension barrier can exist even if your client is also a lawyer. You won’t have to explain what discovery is; the vocabulary is there, but the nuances of the process might not be. A criminal defense lawyer might not have a working knowledge of trust administration and probate (or vice versa).

2) Help Clients Cede Control. Working with someone who has difficulty ceding control can be particularly challenging. Several approaches can be useful here. Set clear boundaries and be prepared to enforce them. It is okay to send a call to voicemail or to not respond substantively to all 20 emails the client sent you during your daughter’s wedding.

A clear to-do list for the client can be helpful (and familiar, as many professions rely on checklists): What documents should the client be gathering? Do they need to talk to an insurance carrier, an employer, or a prospective guardian for their children? What should they be doing or not doing on social media?

Remind the client that you are both experts but in very different things, and just as you would hire a cardiologist to handle an angioplasty or an HVAC contractor to install a new air conditioning system, they hired a lawyer for legal work.

3) Explain Your Billing Process. Make sure you explain your billing process clearly (either in the fee agreement or separately, but in writing). Ideally, you already provide regular, detailed invoices, but if you don’t, it’s good to start doing so, especially for type A clients. These clients need to have written proof of where their money is going and that their attempts to micromanage, pile on unneeded documentation, or play devil’s advocate will add up. A professional accustomed to billing customers or clients monthly will expect the same from you.

4) Exhibit Empathy and Compassion. Clients are human, even if they swagger or put on brave faces. Empathy and compassion, while always crucial, may take on additional importance here. No matter their age, life experience, or accomplishments, your clients are vulnerable. They might never have had to seek legal counsel before, and they can be just as afraid of appearing for a deposition for a car accident as they would be appearing for a felony trial.

Additional Considerations Regarding a Credential

Here are additional considerations to keep in mind when representing a credentialed professional in a matter regarding the person’s credential.

1) If a professional comes to you wanting help with an Office of Lawyer Regulation (OLR) grievance, DSPS complaint, OCI inquiry, or something similar, and you’re not already familiar with the process, resist the urge to accept the representation unless you’re prepared to educate yourself on the procedural and substantive law and standards of care involved. Expanding your practice can be personally and financially beneficial, and you can do so while fulfilling your duty of competence if you educate yourself or make judicious use of consultations with more experienced counsel.⁵ But so-called dabbling can lead to poor work and to malpractice claims.⁶

2) If you are hired for licensing or disciplinary work, check your client’s professional liability insurance policy (with your client’s permission, of course). There may be coverage for grievance or disciplinary counsel that the client was not previously aware of, and typically insureds can choose who they work with. Some policies don’t have a deductible for costs related to licensing defense.

Clients might be concerned that reporting the disciplinary complaint could result in a rate increase. Although you probably can’t counsel them as to the specifics of their carrier’s underwriting decisions, you can remind them that they might have a duty to disclose the complaint anyway, and that timely reporting may help them secure coverage if a malpractice claim is made for the same occurrence.

3) If you are a panel attorney for a professional liability insurance company, your client might not have had the choice as to whether to hire you. They might be relieved at having experienced counsel, vetted by their insurance company. Or they might be uncomfortable because they didn’t choose you and have no first-hand reason to trust you. Expect a bit more conflict with your client in these situations.

4) Many professionals practice in more than one state. They might have individual licenses or certificates in multiple states, or they might be health-care professionals who can engage in interstate practice pursuant to “compacts.” If a professional incurs discipline in Wisconsin, there could be repercussions in other states in which they practice, including a duty to self-report the discipline, either promptly when it is imposed or upon renewal of the out-of-state credential. It’s important to be generally aware of these obligations and to know your limits in assisting your client in reporting Wisconsin discipline elsewhere. Some states will allow lawyers licensed in other states to help (either informally or on a pro hac vice basis), and some consider doing so without a local license to be unauthorized practice. A referral to counsel in the other state(s), if you can provide one, may be welcome.

Conclusion

If nothing else, remember that you, yourself, are a licensed professional, and these tips might be useful if you need a lawyer someday too. If you’re fortunate, it will be less of an ordeal than unclogging the garbage disposal.