On March 3, 2020, Linley Jones Firm P.C. Junior Partner Angela Forstie presented a Continuing Legal Education (CLE) course on legal ethics entitled Avoiding Legal Malpractice Pitfalls at the State Bar of Georgia. Ms. Forstie’s presentation was part of the State Bar Young Lawyers Division Litigation Committee’s annual Litigation: Soup to Nuts CLE. With nearly 250 Georgia attorneys present, the event was sold-out. Ms. Forstie’s presentation addressed attorney’s ethical obligations before, during, and after representation, and gave thorough, practical advice on how attorneys should conduct themselves following an error.
Ms. Forstie explained that in practicing law, the ethical obligations an attorney owes to clients are of the utmost importance. Proceeding ethically as a lawyer is anything but easy, as doing so requires a lawyer to look at situations objectively, putting the interests of the clients first. A lawyer’s obligations include taking responsibility for the lawyer’s own professional errors (as pricey as those errors may be) and advising clients of potential legal malpractice claims against other attorneys when the lawyer recognizes that such claims may exist.
Specifically, Ms. Forstie’s presentation addressed how to screen for conflicts of interest prior to consulting with prospective clients, which conflicts are waivable, which are not, and what is required of a lawyer when the lawyer identifies a conflict of interest after representation has begun. She also talked about some special relationships which can give rise to conflicts of interest over time, such as tripartite representation in the insurance defense context. Ms. Forstie also discussed ethical requirements pertaining to competence, and how attorneys can become competent in areas where they have limited experience.
Of particular interest to the crowd was Ms. Forstie’s discussion of ethical fee sharing arrangements, about which she fielded several questions from attendees. Ms. Forstie explained the importance of considering ethical obligations related to fee splits when making fee sharing agreements. Specifically, a fee split is only allowed if: (1) division is in proportion to the services performed by each lawyer or there is joint responsibility; (2) the client is aware of the fee split; and (3) the total fee is reasonable. Ms. Forstie pointed out that the easiest way to comply with this obligation is to identify all lawyers who will receive a fee in the fee contract with the client, setting forth the percentages that each lawyer will receive as fees. Doing so allows the client the opportunity to ask any questions regarding the arrangement and allows the client to provide written consent to it, thereby eliminating issues down the road regarding the fee split.
In addition, Ms. Forstie cautioned attendees to beware of the common misconception that lawyers must have a written fee agreement in order to establish an attorney-client relationship. Ms. Forstie explained that under Georgia law, an attorney-client relationship may be created expressly by written contract or inferred from the parties’ conduct. She went on to discuss that in Georgia, it is possible to establish an attorney-client relationship on oral and/or written communications alone, despite the lack of a formal fee agreement. If an attorney has reason to believe that a potential client thinks he is a client and the attorney does not want to proceed with the representation, it is important that he clearly conveys his decision declining representation to the potential client. She advised that declining representation in writing is the best method to ensure that the potential client has not misunderstood the relationship.
Ms. Forstie also emphasized the importance of an attorney’s conduct following an error. She pointed out that attorneys must continue to comply with their ethical obligations following an error. She explained that more often than not, it is a lawyer’s conduct following an error that puts the lawyer’s career in jeopardy, not the error itself. In addition, Ms. Forstie advised attendees that the ethical rules require an attorney to keep clients reasonably informed of the statuses of their matters, even when doing so requires telling a client that the lawyer has made mistakes. She also stressed the importance of fulfilling reporting obligations as a prerequisite to coverage under many professional liability insurance policies.
Finally, Ms. Forstie addressed attorneys’ obligations regarding client files. She explained that an attorney has an ethical obligation not to cause prejudice to the client. Consequently, when an attorney’s error results in termination of the attorney-client relationship, or if the client wishes to consult with new counsel regarding ongoing claims or potential claims against the attorney, it is the attorney’s obligation to provide a complete copy of the file to the client. Under Georgia law, the file associated with a claim is the property of the client, including all work product created in conjunction with the representation.
Importantly, she advised, when a client requests his file, he is entitled to the original file and cannot be charged to obtain it, nor can the file be withheld pending payment of outstanding fees. Should the attorney choose to keep his own copy of the file, he may do so, but cannot charge the client copy fees associated with retaining a copy of the file absent a prior agreement allowing him to do so. Failure to provide the client file upon request of the client is not only problematic because it could prejudice the client’s ongoing claim, this failure could also give rise to a bar grievance.
In short, Ms. Forstie’s presentation explained that lawyers are faced with ethical challenges from the time they are consulted by a potential client until the relationship is terminated. Even after concluding an attorney-client relationship, a lawyer’s ethical obligations require that the lawyer provide the complete file to the client if requested to do so and avoid misrepresenting the status of a client’s matter to the client or third parties.
When a costly error is made, resulting in damage to a client, it is important that an attorney take responsibility for the mistake, comply with his ethical obligations, and report the problem to the lawyer’s insurance carrier. To the extent an attorney has questions about ethical obligations, the attorney may always contact the ethics helpline at the State Bar of Georgia through email or via telephone at (404) 527-8741.
