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Article of Interest

The Smart Attorney
By:  Patricia Cole

     The fiduciary duties owed by an attorney are set by to two principal sources, the Texas Disciplinary Rules of Professional Conduct and Texas common law. The idea of a malpractice lawsuit or complaint to the State Bar does not bode well with any attorney; therefore, it is important to consider taking certain actions to prevent such an event from affecting your practice.

     The smart attorney always thinks about any potential conflicts. The most important issue you should consider is whether you have a conflict of interest when it comes to representation of all clients, even existing clients with new matters. It is important that you conduct a conflict search on all new cases to ensure there is no conflict. If you discover a conflict with representation of a client, it does not mean you have to turn the case away if you take the appropriate steps to obtain a waiver of conflict from both parties. However, each attorney should consider whether the conflict is serious enough to warrant potential future problems.

     The smart attorney always conducts a very thorough client interview to obtain all necessary information needed to assess the case. All clients can make mistakes about the facts, fail to inform you of pertinent information, or they can misunderstand the questions. All of these issues can cause you significant problems down the road and even expose you to malpractice or a complaint, all of which could have been avoided if you had taken certain steps.

     The smart attorney always verifies the facts before filing a suit and does not run down to the courthouse half-cocked. This will prevent any claims of unprofessional conduct for filing frivolous or warrantless cases. Filing such cases not only wastes both your time and your client's money, but it is also a misuse of the justice process.

     The smart attorney does not take cases outside his or her abilities. Many attorneys will take any type of case, but this may to be to their own detriment. It is very important to always ensure that you have the legal competency to handle each matter. Texas Disciplinary Rule 1.01(a) states that a lawyer should not accept or continue employment in a legal matter which the lawyer knows or should know is beyond the lawyer’s competency, unless when a competent lawyer is involved or an emergency arises. Also, an attorney should never practice in a state in which the attorney is not licensed, unless there is local counsel and even then, the attorney is advised against taking such risks.

     The smart attorney does not neglect their case load. There are many attorneys every year who are disbarred for neglect of a client or the legal matter. The smart attorney should never neglect their clients and instead timely return telephone calls, complete tasks on time and manage their case load effectively.

     The smart attorney avoids appearances of inappropriate behavior in their relationships with clients. A lawyer should not prepare an instrument giving the lawyer, or a person related to the lawyer, any substantial financial benefit from the client, except in certain circumstances. In such cases it is important to ensure the party is represented by outside counsel. Many courts say that the confidential relationship between attorney and client, together with a benefit to the attorney, creates a presumption of undue influence when the attorney receives a benefit. Furthermore, an attorney should never consciously influence a client for his or her own benefit.

     While this article only deals with some of the grievousness facing today’s attorney, the smart attorney knows to always conduct himself or herself with the utmost respect for their client and cases.