CAAP: The Frontline Approach to Public Complaints

TEXAS LAWYERS' INSURANCE EXCHANGE

CAAP: The Frontline Approach to Public Complaints

By Constance J. Miller, Program Director, Client-Attorney Assistance Program

Nothing jump-starts the day like a certified letter from the State Bar of Texas, Office of the Chief Disciplinary Counsel, announcing that your client has filed a grievance against you and you have thirty days to respond. Predicting which client may call the State Bar of Texas Grievance Information Hotline1 is not a science. The Client-Attorney Assistance Program ("CAAP") can help avoid the conflict, cost, and professional embarrassment of a grievance before the complaint becomes cognizable as misconduct under the Texas Disciplinary Rules of Professional Conduct (TDRPC).

By creating CAAP in 1999, the State Bar took a proactive step to provide clients and attorneys a neutral forum in which to resolve non-grievance level behavior. CAAP is responsible for answering the Grievance Information Hotline, maintained by the Commission for Lawyer Discipline (CFLD). Clients, non-clients, and attorneys may utilize the hotline. In addition to the Program Director (author of this article) and an administrative assistant, CAAP has four program associates all of whom have hotline experience and two are bilingual. Centralized in Austin, CAAP currently serves the Austin and Fort Worth regions of the State Bar. By mid-2002, CAAP services are anticipated to be available statewide.

Four-Prong Mission

CAAP's mission is four-fold. First, the program attorney and program associates "prescreen" calls from clients and non-clients. This effort helps alleviate unproductive workload and expense on the disciplinary system, and assists complainants with options that ideally will resolve concerns not involving misconduct under the TDRPC. These options may include self-help, referrals to local bar associations and community agencies, referrals to the grievance process, and the CAAP resolution process that is its core function.

Through CAAP resolution, lawyers and clients have the opportunity to correct minor problems in a confidential setting before their relationship breaks down completely. In this setting, CAAP records minimal information about the issues for resolution between the client and lawyer. Any written records of contact are systematically destroyed retaining only non-identifying demographic data for reporting and educational purposes. Any identifying information about contact with CAAP is neither shared with, nor is it available to the Chief Disciplinary Counsel (CDC).

Because CAAP is on the front line for reports of poor law office management problems or attorney impairment due to substance abuse, stress, medical or psychological problems, CAAP's contact with the lawyer may result in referral for help from other State Bar resources. Two such resources for lawyers are the Law Office Management program (LOM), designed to assist practitioners develop sound management practices, and the Texas Lawyers Assistance Program (TLAP), which can help reach the impaired lawyer before circumstances become career-killers.

In support of the disciplinary system, CAAP mails grievance forms and grievance process information when the conduct reported appears to violate any disciplinary rules. CAAP also answers general questions about the grievance process and the TDRPC.

Finally, data gathered by CAAP is analyzed for insight regarding trends affecting client and non-client relationships, public expectations and perceptions about lawyers' work, and helps identify conduct that is most likely to draw grievances. The data is reported regularly to the CFLD and incorporated in continuing legal education courses.

Per month, CAAP currently answers approximately 1,400 telephone calls, mails grievance forms to 500 potential complainants, refers 350 callers to the Lawyer Referral Information Services, State Bar, and other community agencies, and provides fee dispute referral options in 50 or more client-attorney situations. CAAP also responds to hundreds of general questions about the legal system and procedures.

The Complaints: Neglect Tops the List

Neglect is the most common client complaint. See TDRPC 1.01, 1.02, and 1.03. This neglect begins with failure to return phone calls for days and weeks at a time, failure to provide regular status reports or respond to a client's request for information (written or not), or a lack of diligence or attention to the client's legal matters.

Client irritation over communication problems can be avoided by:

Implementing office management policies for phone calls, such as keeping a telephone log and practicing the return of telephone calls within 24 to 48 hours.
Delegating the client return call to trusted staff, if unable to respond promptly yourself.
Addressing the client's concerns directly with adequate information.
Being well prepared for meetings with the client, for hearings, mediations, etc.

Fee Agreements

Complaints about fee agreements frequently concern those not put in writing (or even if written, not explained at the beginning of the relationship), bills sent irregularly, and difficult-to-understand statements. When the concerns do not indicate an unconscionable or illegal fee or other conduct violating the fee provisions of TDRPC 1.04, CAAP program associates inform the caller about local bar association fee dispute committees and explain the disciplinary rule provisions.

Protect yourself and minimize disagreements over this sensitive subject by:

Discussing fees and billing practices when the client-attorney relationship begins.
Reducing fee agreements to writing (a must for contingency fee cases, and a good practice with new clients), clarifying non-refundable fee provisions, and most other representations.
Billing at regular intervals so as not to surprise clients with charges accruing over months, especially when clients specifically indicate a need to budget for costs and fees.

Settlement Delays and Documentation

Clients also complain about delays in distributing settlements and problems with lost or missing documents. See TDRPC 1.14. To maintain trust, it is critical to keep clients informed about settlement negotiations and acknowledge when settlement funds are received. Any delay or dispute about distribution of settlements or payments to third parties and medical providers is likely to draw fire.

To minimize problems regarding settlements:

Promptly account for all funds received on behalf of clients. Deposit those funds in a separate IOLTA account with limited access, i.e., no debit cards.
Reach a clear understanding, in writing, with your client about how fees are distributed from settlements, and any payments to third parties from settlements, i.e., in personal injury cases.
Explain the settlement distribution sheet to the client and date it; also, having client and attorney signatures would be ideal.
Keep original, one-of-a-kind, or otherwise difficult or costly-to-replace documents in a safe or fire proof cabinet, or copy them and return the originals to the client and obtain a receipt acknowledging same.

Conflicts

Other common client complaints include conflicts of interest that arise or are disclosed after the client-attorney relationship is formed and problems over declining or withdrawing from representation. See TDRPC 1.06 - 1.11 and 1.15. When declining representation or withdrawing due to conflicts of interest or other issues, follow these practices:

Select clients carefully. Screen for conflicts before the first appointment, if possible, to avoid discussing confidential information inadvertently, in case you are not able to represent a party due to a conflict.
Discuss conflicts immediately with the client as they arise during representation, or when declining or withdrawing from representation.
Use letters of engagement (or non-engagement) to clarify for all concerned whether you will or will not provide representation, and define the scope of legal services.
Return all client property and the client's file promptly (after retaining copies at your expense for your archives).

The Higher Standard of Conduct

Complaints about lack of integrity and candor, abusive litigation tactics, and communicating with non-clients are troublesome because clients hold lawyers to a higher standard of conduct than non-lawyers. See TDRPC 3.02, 3.03, 4.01, 4.02, and 8.04. Good lawyering does not mean sacrificing character, fairness, honesty, and integrity when dealing with clients, non-clients, other lawyers, or courts.

Finally, this discussion would be incomplete without mentioning professionalism. A mutually beneficial client-attorney relationship can end abruptly when clients take offense to dismissive attitudes and rude, abrasive, or disrespectful behavior and speech. Disorganization can also trigger the end, for a dissatisfied client. Staff courtesy, treating clients with dignity, and good business practices will convey the firm's professionalism, confidence, and effective legal representation.

TLIE appreciates the contribution of this article by Ms. Miller. She has served as CAAP Program Director for the State Bar of Texas since 1999. Currently licensed as an attorney in Texas and Missouri, she maintains inactive licenses in Arizona and Kansas. She may be reached in Austin at cmiller@texasbar.com or caap@texasbar.com. For more information about CAAP, call 1-800-932-1900 from the Austin or Fort Worth regions, or 1-800-204-2222 ext. 1790 from anywhere in Texas.