How To Start and Manage A Successful Consumer Law Practice; Doing It Ethically - Avoiding Malpractice

HOW TO START AND MANAGE A SUCCESSFUL CONSUMER LAW PRACTICE

SPEAKER:

Robert S. “Bob” Bennett

[email_address]

The Bennett Law Firm, P.C.

515 Louisiana, Suite 200

Houston, Texas 77002

(713) 225-6000

www.bennettlawfirm.com & www.bennettlawfirmmed.com

DOING IT ETHICALLY – AVOIDING MALPRACTICE

Protecting the Public 2007 – 08 Snapshot 1

Thomas Watkins, Commission for Lawyer Discipline Member

Estimates that every new attorney licensed after 1999 will have at least two disciplinary complaints filed against them during their career.

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Grievances Filed Compared With Attorney Growth Under Current Rules 3 7,780 7,494 6,954 7,308 Grievances 77,056 77,934 80,094 81,601 Lawyers 2004 -05 2005 - 06 2006 - 07 2007 - 08 Year

“ As an attorney, Santos is presumed to be familiar with the provisions in the Rules of Disciplinary Procedure…”

SANTOS v. COMMISSION FOR LAWYERS DISCIPLINE, 2004 WL 1116996 (Tex. App. –Houston [14th Dist.] May 20, 2004). 4

State Bar of Texas Attorney Disciplinary System Dismissed – “Inquiry” BODA (Complainant Appeals) Investigatory Hearing Texas Supreme Court Evidentiary Hearing District Court Board of Disciplinary Appeals Court of Appeals BODA (Respondent Appeals) Dismissed “No just cause” Grievance –“Complaint” Classification “ Just Cause” Accept. Reject or Negotiate Grievance 5 Pre-HB 599 procedure

State Bar of Texas Attorney Disciplinary System Grievance Dismissed – “Inquiry” BODA (Complainant Appeals) Referred to voluntary mediation BODA (Respondent Appeals) Grievance –“Complaint” Investigatory Hearing Dismissed no ‘just cause’ Dismissed – Mandatory Referral to voluntary mediation Evidentiary Hearing District Court Board of Disciplinary Appeals Court of Appeals Summary disposition Panel Hearing** Notice Letter * Respondent may or may not have an opportunity to discuss the case with the OCDC ** Respondent & complainant NOT present OCDC Investigation* OCDC finds no just cause OCDC finds Just cause Texas Supreme Court New procedure 6

Summary of Evidentiary Hearing

Private reprimand only available if Evidentiary Hearing is chosen

Rocket Docket, compared to civil trial

Limited discovery

Private unless public reprimand

Prosecution oriented

7

Civil Trial

Rules of Civil Procedure & Evidence apply

Option for jury trial

No private reprimand available

More expensive

8

Top 10 Rule Violations

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Advertising & Solicitation – 1%

Lawyer Advertising is regulated by Part VII of the Texas Disciplinary Rules of Professional Conduct.

Regulations are implemented and enforced by the Advertising Review Committee and the Advertising Review Department of the State Bar of Texas.

Purpose: To protect the public from lawyer advertising that is false, misleading or deceptive.

10

Tribunals – 2% 3.01: Meritorious Claims and Contentions 3.02: Minimizing the Burdens and Delays of Litigation 3.03: Candor Towards the Tribunal 3.04: Fairness in Adjudicatory Proceedings 3.05: Maintaining Impartiality of Tribunal 3.06: Maintaining Integrity of Judicial System 11

Non-Client Relationships – 3% 4.01: Truthfulness in Statements to Others 4.02: Communication with One Represented by Counsel 4.03: Dealing with Unrepresentative Person 4.04: Respect for Rights of Third Persons 12

Conflicts – 3% 1.06: Conflict of Interest: General Rule 1.07: Conflict of Interest: Intermediary 1.08: Conflict of Interest: Prohibited Transaction 1.09: Conflict of Interest: Former Client 13

Fees – 6%

1.04: Fees

Illegal or Unconscionable Fee

Contingency Fees

Division of a Fee

Refundable vs. Non-Refundable Retainers

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“ It’s from my attorney.” 15

Communication – 8%

1.03: Communication

A lawyer shall keep a client reasonably informed about the status of a matter and properly comply with reasonable requests for information

A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

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Integrity – 9% 8.01: Bar Admission, Reinstatement, and Disciplinary Matters 8.02: Judicial and Legal Officers 8.03: Reporting Professional Misconduct 8.04: Misconduct 8.05: Jurisdiction 17

Safe keeping Property – 11% 1.14 Trust Accounts 18

Declining or Terminating Representation – 11% 1.15(d): Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. 19

Neglect – 46% 1.01: Competent and Diligent Representation (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. 20

Helpful Hints

Reporting actionable/grievable conduct: 1-800-932-1900 or www.TexasBar.com

Ethics Opinion – Ethics Hotline: 1-800-532-3947 or www.TexasBar.com No written opinion – but can send letter of confirmation as to what you were told.

Client Security Fund – through office of Chief Disciplinary Counsel – Grievance must be filed. 1-877-953-5535 Maureen Ray, Brochure – www.TexasBar.com

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Helpful Hints Cont.

Referral Option – handled by CAAP when case dismissed.

Client Attorney Assistance Program (CAAP) –In 2007-2008 CAAP contacted 44,222 Resolution: 1,031 w/o formal action Major Complaint: Neglect & Communication