Wisconsin Lawyer
Vol. 85, No. 10, October 2012

The Milwaukee Journal Sentinel published an article this summer about the rapidly growing number of grievances filed against lawyers with the Office of Lawyer Regulation (OLR). Reporter Steven Walters wrote that between 2008 and 2011, the number of formal OLR investigations pending at the end of the year rose 87 percent, from 313 to 588. He also wrote that over the same period, the number of all pending matters before the office went up by 63 percent, from 651 to 1,066.

At Wisconsin Lawyers Mutual Insurance Co. (WILMIC), much of our focus is obviously on legal malpractice claims – defending our policyholders and protecting them when they face a claim of negligence from a client. We speak and write about how lawyers can avoid the types of errors and pitfalls that can give rise to a malpractice claim. Our policyholders also rely on us for help when facing what we refer to as potential claims and grievances. These are circumstances that, although not formal malpractice claims, could give rise to one in the future. WILMIC tracks both legal malpractice claims and OLR grievances involving policyholders.

The areas of law that produce the most grievances and those that produce the most malpractice claims differ significantly. Grievances and malpractice claims also differ as to the types of errors most commonly made by lawyers. A comparison of the two types of complaints is instructive.

Similar to Walters' findings in his Journal Sentinel report on the increase in OLR filings, WILMIC claims counsel Brian Anderson has observed that grievances are being filed against lawyers in Wisconsin with increased frequency. "Since the beginning of 2011, our insured lawyers are three times more likely to report an OLR grievance than a legal malpractice claim, as 70 percent of the company's working files are potential claims or grievances, and 30 percent are actual malpractice claims. We're seeing a similar trend so far in 2012."

Risky Practice Areas

OLR grievances cost lawyers time, money, and aggravation. Knowing the areas of practice and the types of errors most often complained about can help alert you to vulnerabilities in your practice and allow you to implement procedures to prevent mistakes. The effort needed to avoid a grievance in the first place is far less than that needed to mount a successful defense after a grievance has been filed.

Walters reported in his Journal Sentinel article that according to the OLR's last annual report, the areas of practice most commonly the target of complaints were criminal cases (30 percent) and family and juvenile matters (20 percent). Anderson says WILMIC's experiences in the past couple years are similar. "Bankruptcy, family law (including GAL work), and criminal law are the top three areas of practice in which grievances are reported to us since 2010."

He says these areas significantly differ from the practice areas in which lawyers are most likely to report a malpractice claim. "The top three law areas for malpractice claims reported to us are personal injury, real estate, and estate/probate/trust. Grievances are most frequently filed in law areas that involve a high degree of personal stress on the grievant. When clients are facing financial pressure, family stress, or problems involving the criminal justice system, they are more inclined to file an OLR grievance against their lawyer. Lawyers doing criminal defense work are a target in part because their former clients have time and encouragement from others with whom they are incarcerated."

Anderson adds, "It is possible the economic downturn also has played a role in the increase in grievances. We started seeing an increase around 2008 and 2009, which coincided with the onset of the recession. There is less money to fight about in family law cases, for example, and that often means people will fight harder for it. And when things don't turn out the way they wanted, the attorney is a prime target."

Common Errors

The top three error types in grievances reported to WILMIC are fee disputes, failure to obtain consent and/or keep the client informed, and failure to follow client instructions. These errors differ from those reported when a claim has been filed, where the top three errors involve calendaring, errors in choice of procedures, and failure to know or properly apply the law. Anderson says the errors alleged in grievances highlight the importance of communication between lawyers and their clients.

"Especially when working with a client in a high stress situation, a lawyer should not assume that the client has provided informed consent, without confirming in writing the action to be taken. Written documentation is evidence that the lawyer is proceeding in a manner authorized by the client. This communication with the client is evidence that the client understood the benefits and risks involved, including costs. Finally, written communication is helpful when a lawyer is facing an OLR grievance in order to establish that the legal services were provided in accordance with the Supreme Court Rules of Professional Responsibility."

Written documentation can be done in formal letters to the client or in emails. Any email "chain" needs to be carefully monitored, especially if various alternatives are being presented and considered. Anderson cautions, "The lawyer should be careful to make the ‘final decision' email stand out with a clear statement of the client's decision and how that directs the lawyer's actions. Phone calls or personal meetings with the client can be more efficient at cutting through the issues with a clearer understanding by both the lawyer and the client of how the matter should be handled. The written communication to the client then confirms the decision arrived at in the call or meeting."

The following are examples of types of grievances reported to WILMIC in 2012:

• a bankruptcy attorney who failed to timely return his client's phone calls;
• a criminal defense attorney who failed to keep the client informed of the status of the client's appeal;
• a divorce attorney who improperly withdrew from representation and charged excessive fees for the legal services rendered before withdrawal;
• a real estate attorney who failed to communicate with the client and attempted to collect his fee owed by the client; and
• a guardian ad litem in a family law matter who failed to conduct an adequate investigation before making a placement recommendation.

Anderson points out that "each of these examples includes communication issues. Clients need to understand and agree when and how their lawyer will communicate on their matters, including when and how they will be billed. If a matter changes or requires additional work not anticipated at the outset, that information should be communicated. In the end, the expectations, goals, and interaction between lawyer and client should mesh and the file should document how those goals, expectations, and the process to reach them were agreed upon."

Conclusion

These trends are expected to continue. As more grievances are filed, lawyers will have to spend more time and money on them. Many lawyers are more concerned about an OLR complaint than they are about a malpractice claim. Unlike malpractice claims, anyone in Wisconsin can file a grievance with the OLR against a Wisconsin-licensed lawyer, whether that person has been a client or not. One of the primary keys to avoiding a grievance is to communicate with your clients. As Anderson says, "An informed client who has been kept advised of the status of his or her case and is aware of the fees involved is far less likely to file a grievance."

Wisconsin Lawyer