Ethics Question of the Month - June 2019

Client X hired Lawyer A to represent him in a tort case three months before the two-year statute of limitations expired.   Lawyer A’s investigation encountered some obstacles, and he was handling numerous other cases at the same time.  He calculated the limitations deadline incorrectly and missed it by two days, but he filed the suit anyway to see if the defendant would raise limitations.  She did, and the court dismissed the case.  Client X filed a grievance against Lawyer A.

Client X then consulted with Lawyer B about his malpractice claim against Lawyer A.  Lawyer B is a two-year family law attorney who has never handled anything other than family law matters; he has no experience with legal malpractice cases.  Further, Lawyer B has argued two motions in court and defended several depositions in family law cases.  He has yet to take a deposition because he has been working with experienced family law attorneys who handle most of the litigation in his matters.  Client X wants Lawyer B to file suit right away and move forward on the malpractice claim.  Lawyer B is worried about taking the malpractice case, but decides that he wants to help Client X because his client says that other lawyers won’t sue Lawyer A.

Which of the following is most accurate?  

A.    Both lawyers have legitimate grievance problems under the Texas rules.
B.    Neither lawyer has a legitimate grievance problem under the Texas rules.
C.    Lawyers A should be sanctioned, but Lawyer B should not. 
D.    Lawyers B should be sanctioned, but Lawyer A should not.
E.    Lawyer A should be sanctioned, but we don’t have enough information about Lawyer B to know whether he has a legitimate grievance problem.

Rule 1.01, Texas Disciplinary Rules of Professional Conduct, is applicable:

(a) A lawyer shall not accept or continue employment in a legal matter which the lawyer knows or should know is beyond the lawyer's competence, unless:

  • (1) another lawyer who is competent to handle the matter is, with the prior informed consent of the client, associated in the matter; or(2) the advice or assistance of the lawyer is reasonably required in an emergency and the lawyer limits the advice and assistance to that which is reasonably necessary in the circumstances.

(b) In representing a client, a lawyer shall not:

  • (1) neglect a legal matter entrusted to the lawyer; or

  • (2) frequently fail to carry out completely the obligations that the lawyer owes to a client or clients.

(c) As used in this Rule, neglect signifies inattentiveness involving a conscious disregard for the responsibilities owed to a client or clients.

See also this official Comment to Rule 1.01:

7. Perhaps no professional shortcoming is more widely resented than procrastination. A client's interests often can be adversely affected by the passage of time or the change of conditions; in extreme instances, as when a lawyer overlooks a statute of limitations, the client's legal position may be destroyed. Under paragraph (b), a lawyer is subject to professional discipline for neglecting a particular legal matter as well as for frequent failures to carry out fully the obligations owed to one or more clients. A lawyer who acts in good faith is not subject to discipline, under those provisions for an isolated inadvertent or unskilled act or omission, tactical error, or error of judgment. Because delay can cause a client needless anxiety and undermine confidence in the lawyer's trustworthiness, there is a duty to communicate reasonably with clients; see Rule 1.03. (Emphasis added).

This Rule defines what actions or inactions constitute “neglect” and “competence.”  

In Lawyer A’s case, his isolated error does not involve “conscious” neglect in the sense that it was a repetitive, preventable problem that he failed to address.  It may constitute negligence for which the attorney can be sued, but it is not “neglect” under the Rule.  There is one unknown, however: did Lawyer A promptly tell his client about his “missed limitations” error?  If not, then he violated Rule 1.03 and possibly Rule 8.04(a)(3)—as well as his fiduciary duty.

Lawyer B is fine to proceed with representing this client in unfamiliar legal territory as long as she works hard to learn the rules and law for handling this matter and/or associates an experienced lawyer with the representation.  The Comments to Rule 1.01 are clear that a lawyer may undertake representations for which the lawyer is inexperienced or not knowledgeable as long as the lawyer does at least one of those two remedial measures to become competent.  Of course, the lawyer needs to be candid with the prospective client about his or her lack of experience and expertise in that area of law—or generally, if the lawyer is insufficiently experienced overall.  This also means that a lawyer should not hold himself or herself out as, for example, an experienced trial lawyer by implication, if that is not the case.

Therefore, the best answer is B.  

For comparison, consider a third scenario:  Lawyer C is a decent attorney, but disorganized in his calendaring and work habits at times.  He recently missed two court appearances (he forgot), one court-ordered deadline (wrong date on his calendar), and failed to timely file a response to a partial summary judgment motion (he had trouble getting his summary judgment evidence together in time)—all for the same client.  In another case during the same time, he missed one hearing because he overlooked the notice, didn’t show up at two depositions because he had the wrong dates on his calendar (both were rescheduled due to his absence), and missed the expert designation deadline although he had two experts to disclose.  Both clients filed grievances against Lawyer C for his errors.

Under these facts, Lawyer C is in trouble.  He is not simply making isolated errors.  With repetitive errors, he has demonstrated “inattentiveness involving a conscious disregard for the responsibilities owed to a client or clients.”  While Lawyer C may not be intending to commit these errors, he is “conscious” of the need to meet deadlines, appear in court and at depositions, and otherwise attend to his client’s legal needs.  By failing to correct his errors, he has violated Rule 1.01.

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About Ethics Question of the Month

Ethics Question of the Month is a regular feature of the Texas Bar Journal created and sponsored by the Texas Center for Legal Ethics.

DISCLAIMER: The information contained in Ethics Question of the Month is intended to illustrate an ethics issue of general interest in the Texas legal community; it is not intended to provide ethics advice that applies regardless of particular facts.  For specific legal ethics advice, readers are urged to consult the Texas Disciplinary Rules of Professional Conduct (including their official comments) and other authorities and/or a qualified legal ethics advisor.

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