October 2010 - Managing Expectations–What Lawyers Can Do to Avoid Malpractice

by Robert K. Sall

Lawyers often ask what can be done to avoid a legal malpractice claim. The first thing that comes to mind is obvious—don’t make a serious mistake. Looking at the array of sticky notes pasted to the computer screen, I’m reminded constantly to go over what is on my plate and keep a management list. But avoiding malpractice is not just about managing deadlines and paper flow. Many legal malpractice claims arise from the client’s expectation that you were going to do something that wasn’t even on your radar screen.

Clients have expectations of their lawyers, sometimes reasonable and sometimes not. Client disappointment over unexpected results leads to malpractice claims. Many times, disappointment can be managed through proper communication with the client. Maintaining effective communication concerning expectations is an essential skill in guarding against prospective malpractice liability.

Lawyers can learn to maintain better client relations by viewing the world periodically from the client’s perspective. If you were paying the going hourly rate to hire a lawyer, what would your expectations be? Visualizing yourself as the client provides a valuable perspective for avoiding legal malpractice claims.

Litigation is an inherently stressful and uncertain means of conflict resolution. While the legal representation you provide is just another matter of your daily business, it may be the single most important thing going on in the client’s life. A prudent lawyer must appreciate and understand the case from that perspective and learn to reasonably manage the client’s expectations.

The standard of care does not require a lawyer’s conduct to be perfect. Unless the lawyer is a specialist, he or she must only perform as an ordinary lawyer would under like circumstances. By accepting employment to give advice or render legal services, the lawyer impliedly agrees to use ordinary judgment, care, skill, and diligence in performing the tasks undertaken. Nichols v. Keller, 15 Cal.App.4th 1672, 1682 (1993). In order to do so, the lawyer must communicate with the client in a meaningful way. Under current Rule 3-500 of the Rules of Professional Conduct (soon to be renumbered Rule 1.4 in a pending revision), a lawyer must reasonably communicate with the client about significant developments in the representation.

Scope of Work
The starting point for managing expectations in order to avoid claims is to reasonably limit the scope of the representation to that which has been discussed and agreed between the attorney and client, and to be cautious about unwittingly expanding the scope. When surprises develop during legal representation, they may impact the tasks that need to be performed or the advice to be given. How the lawyer approaches these issues may lead to problems in the scope of duty.

Claims are more likely to arise when clients and their lawyers have differing expectations regarding the scope of work. If a lawyer represents the client to sue an entity for causing an injury, does the scope of work include advising the client of the tax consequences of the recovery? Is a lawyer handling a matter on a contingency obligated to prosecute or defend an appeal? Does representing a plaintiff in a litigation matter require the lawyer to also handle the claims process or adversary proceeding if the defendant later files a Chapter 11 bankruptcy petition? These are areas in which a lawyer can avoid claims by ensuring that the client understands what the lawyer will and will not do.

The attorney-client relationship is a fluid one that may change with the circumstances, potentially far beyond the initial expectations of the parties. Such changes may arise from an implied agreement, such as the parties’ behavior, from a person asking for and receiving legal advice, or even the lawyer’s vague suggestion that he or she will look into a matter. Miller v. Metzinger, 91 Cal.App.3d 31, 39-40 (1971). If the lawyer does not intend an unlimited scope of duty, it is important to define and limit the scope of the work to be done, which is best accomplished at the inception of the engagement. The lawyer should define the relationship in the retainer agreement and to take steps to make sure the client continues, throughout the relationship, to understand the reasonable limitations on what the lawyer has committed to do. This is essential to managing the client’s expectations to avoid claims.

It is permissible for a lawyer to limit the scope of the representation to a particular matter, so long as the limitation is reasonable under the circumstances. The client may explicitly agree to such a limitation. Kalmus v. Kalmus, 103 Cal.App.2d 405, 425-26 (1951). Such a limitation may also arise by implication from a long course of dealing between the attorney and client. Kane, Kane & Kritzer, Inc. v. Altagen, 107 Cal.App.3d 36, 41-42 (1980). To carefully manage client expectations it is prudent to be explicit and to communicate with the client when new developments impinge upon or expand the scope of representation. The lawyer should also be careful to guard against impliedly expanding the scope of representation, unless there is a mutual intent to do so. When a lawyer undertakes a task not originally contemplated, it impliedly alters the scope of duty to include those steps reasonably necessary to competently pursue that task.

One of the lawyer’s fundamental duties is to render advice, including fully informing the client as to his or her rights and available alternatives under the circumstances. The failure to do so may violate the standard of care. Considine Co. v. Shadle, Hunt & Hagar, 187 Cal.App.3d 760, 765 (1986). Certain obligations to render advice to the client are implied in law, even though they may facially appear to be outside the scope of the contemplated representation. For example, a worker’s compensation attorney has been held to have a duty of care to advise the client of the right to bring third party injury claims even though the agreed scope of representation was to just handle the worker’s comp case. Nichols v. Keller, supra, 15 Cal.App.4th 1672, 1686-87. Similarly, an attorney was held to have a duty to advise that the client’s spouse might have a loss of consortium claim, even though the attorney did not represent the spouse. Meighan v. Shore, 34 Cal.App.4th 1025, 1034-41 (1995). These cases exemplify a lawyer’s obligation to anticipate other matters collateral to the representation that might cause harm to the client or a closely associated person. A lawyer has an obligation to volunteer advice at least to the extent of informing the client of the existence of such matters when it is reasonably foreseeable they may cause harm if not disclosed. This duty exists even where the lawyer has no obligation to actually pursue the other matters. Thus, while certain duties can be limited by agreement, other obligations remain a natural extension of the lawyer’s duty to provide advice.

Clients rely upon their lawyers to guide them through the legal process. The relationship involves the highest level of trust and confidence. If the lawyer hasn’t been engaged for a particular task, the client should have the same understanding. The Supreme Court in Butler v. State Bar, 42 Cal.3d 323, 329 (1986) said: “The attorney’s duty to communicate with a client includes the duty to communicate to persons who reasonably believe they are clients to the attorney’s knowledge at least to the extent of advising them that they are not clients.” The same is true with respect to advising the client when there is a limited scope of representation as to the services that will not be provided.

Expectations Regarding Remedies and Beyond
A lawyer should also manage the client’s expectations with respect to the potential remedies that may be available, potential recoveries that may be obtained, and losses that may be sustained. Clients need to understand that unless their case is settled, there will be a winner and a loser. There are no guarantees. A client should be reasonably well informed of the foreseeable range of outcomes and the risks of loss.

Clients frequently believe that getting to a jury verdict means there will be a check in the hand of the winner. Clients need to be informed about post-judgment motions, bonds, appeals, the possibility of reversal or the inability to obtain a reversal, and about the possibility of bankruptcy or inability to collect.

Discussions of this nature are important to managing the client’s expectations, and avoiding malpractice claims. Likewise, maintaining good client relations through proper communication is essential. This includes returning telephone calls, answering client questions, and informing the client of the risks and benefits of taking a particular course of action, including the relative risks and foreseeable expense of getting there. Every client must understand the risk of loss. The more a lawyer effectively communicates with a client, the better the relationship will be, and that goes a very long way toward avoiding malpractice claims.


Robert K. Sall practices with The Sall Law Firm, APC in Laguna Beach. He is a member of the Orange County Bar Association’s Professionalism and Ethics Committee, and lectures frequently on lawyer conduct, legal ethics, and malpractice.