We continue with our list of ways to avoid an ethics complaint in Georgia. If you missed the first three suggestions, check them out here: https://wp.me/p2psRJ-9y.
- USE WRITTEN REPRESENTATION AGREEMENTS
The ethics rules do not require written agreements – except in contingency cases; see Rule 1.5(c)(stating mandatory content) – but it is foolish not to for many surely obvious reasons. Whether in the style of a contract or an engagement letter, be sure the language and terms of your form agreement are adjusted to actually fit the case at hand, and without internal contradictions or confusing alternatives, like including both hourly and contingent terms if it’s only one or the other. Make any limitations on the representation explicit. For example, does the agreement include taking the case to trial no matter what; are post-trial motions or appeals included; if drafting a contract are you also agreeing to enforce or defend it? Make sure the agreement is in all respects unambiguous to a non-lawyer, and give the client enough time to read and ask questions before signing. Accurate mutual understanding at the beginning will help avoid headaches later.
Always have both your and your client’s signature on the agreement or letter. It’s surprising how often one or the other is missing. And give your client a fully executed copy right away. Including an acknowledgment of receipt above the client’s signature is a good idea, too, along with internal record keeping that shows when the client signed and received it.
- WHEN THE CASE IS OVER, CLOSE IT WITH FORMALITY
Don’t allow any ambiguity about whether the representation has concluded. Put it in writing. Rule 1.5(c) has specific requirements for closing contingent fee cases. If money is disbursed, use a 1.5(c)-type Closing Statement signed by the client, even if the fee is not contingent. If the representation is simply over, put that in a letter to the client. If you withdraw before the case concludes, be sure to comply with Rule 1.16(c) and (d), and cooperate with replacement counsel if there is one.
Finally, address what happens to the client’s file. In a withdrawal situation, the file should be returned to the client or delivered to new counsel. Rule 1.16(d). Whether it’s withdrawal or the end of the case, the client is entitled to the original file if desired, and it is a good practice to return unique, original documents regardless. Be aware that the file consists of almost everything you have, Swift, Currie, McGhee & Hiers v. Henry, 276 Ga. 571, 573 and n. 3 (2003), and that routinely sending the client copies during the course of the case may not satisfy the requirement of returning the file at the end. Adams v. Putnam County, 290 Ga. App. 20 (2008). You can retain a copy of the file, but at your own expense unless the representation agreement explicitly makes that cost the client’s. You cannot withhold the file as leverage for unpaid fees or expenses. Formal Advisory Opinion 87-5.
- BE RIGOROUS AND METICULOUS WITH YOUR TRUST ACCOUNT
Only a few high points are mentioned here. You should read Rules 1.15(I) and 1.15(II) carefully, and read them again once in a while.
- Rule 1.15(II)(b) says that ”[r]ecords on . . . trust accounts shall be so kept and maintained as to reflect at all times the exact balance held for each client or third person.” (italics added) Bank statements alone cannot do that; you must have internal accounting.
- Rule 1.15(II)(c) says that “a lawyer [i] shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, [ii] upon request by the client or third person, shall promptly render a full accounting regarding such property.” Those “entitled to receive” include among others those identified in Rule 1.15(I)(b).
- Rule 1.15(I)(b) specifies certain third party claims to trust funds that you cannot ignore, i.e., they must be paid from the trust account unless you “reasonably conclude that there is a valid defense” to the claim. (And of course you can negotiate the actual amount to be accepted as satisfaction.) Rule 1.15(I)(d) sets out what you can and can’t do if there’s a dispute about who is entitled to what (Comments  and [3A] also address that).
Perhaps most important, take personal responsibility for assuring compliance with the trust account rules. The rules require “[e]very lawyer who practices law in Georgia and who receives money or other property on behalf of a client or in any other fiduciary capacity” to have a compliant trust account, and to abide by the obligations and prohibitions imposed by the rules. That means you, so be wary about delegating compliance assurance, and be especially wary of delegating it completely to someone else no matter how much you trust them. Delegating some of that responsibility is not per se wrong, but it is not risk free, either. For solo and small firm lawyers especially (but not exclusively), personal review of trust account records on some regular basis, and monitoring related firm policies and practices, is certainly the best practice.
In a later post, we’ll address what to do if a grievance is filed against you.
– Bill & Natalie
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