Learn how to protect yourself from legal malpractice and Bar complaints in Arizona.

1. 10 Tips for Avoiding
Legal Malpractice
By: Eric M. Jackson, JacksonWhite

2. 1. Conflict Checks

3. CONFLICT OF INTEREST
“A lawyer shall not represent a client if the representation
involves a concurrent conflict of interest, which exists if:
• The representation of one client will be directly adverse
to another client.
• There is a significant risk that one or more clients will be
materially limited by the lawyer’s responsibilities to
another client, former client, a third party, or a personal
interest of the lawyer.”
Arizona Rules of Court: ER 1.7

4. What should a conflict check include?
•Names of all parties to the lawsuit
•Key players
•Witnesses
•Related entities
•Principals of the entities

5. “Attorney violates rule governing conflict of
interests when he represents two defendants with
conflicting interests in civil litigation and indicates
to one that it is to ‘our’ obvious advantage to keep
the other as friendly as possible.”
In the Matter of a Member of the State Bar of Arizona, John Adair
SHANNON Jr., 179 Ariz 52, 876 P.2d 548 (1994)

6. “Attorney who tells one client that there is
possibility of conflict arising and that he would have
to withdraw if it did but who does not explain
concept of conflict of interest, what specific conflict
may arise, or any of the advantages and risks from
dual representation does not adequately comply with
requirement of obtaining client’s consent to
representation.”
In the Matter of a Member of the State Bar of Arizona, John Adair
SHANNON Jr., 179 Ariz 52, 876 P.2d 548 (1994)

7. “Attorney who keeps one of two clients informed
of status of litigation and relies on that client to
keep a second client informed violates rule
requiring attorney to keep client informed and to
explain matters to client.”
In the Matter of a Member of the State Bar of Arizona, John
Adair SHANNON Jr., 179 Ariz 52, 876 P.2d 548 (1994)

8. 2. Don’t miss deadlines.

9. DILIGENCE
“A lawyer shall act with
reasonable diligence and
promptness in representing a
client.”
Arizona Rules of Court: ER 1.3

10. 3. Follow the
Rules of Professional Conduct.

11. COMPETENCE
“A lawyer shall provide competent representation
to a client. Competent representation requires
the legal knowledge, skill, thoroughness, and
preparation reasonably necessary for the
representation.”
Arizona Rules of Court: ER 1.1

12. 4. Beware of
casual communications.

13. COMMUNICATION
A lawyer shall:
• Promptly inform the client of any decision or circumstance with
respect to the client’s informed consent.
• Reasonably consult with the client about the means by which
the client’s objectives are to be accomplished.
• Keep the client reasonably informed about the status of the
matter.
• Promptly comply with reasonable requests for information.
• Consult with the client about any relevant limitation on the
lawyer’s conduct when the lawyer knows that the client expects
assistance not permitted by the Rules of Professional Conduct or
other law.
Arizona Rules of Court: ER 1.4

14. “Attorney failed to clearly and adequately
communicate with and advise his clients.”
In the Matter of a Member of the State Bar of Arizona, Daniel
Armando NICOLINI, 168 Ariz 448, 814 P.2d 1385 (1991)

15. 5. Don’t accept every case.

16. Red Flags
•Clients changing lawyers
•Unreasonable expectations
•Clients in unexplained rush
•Refusal to pay consultation fee or retainer
•Litigious histories
•Hidden agendas
•Discomfort or awkwardness

17. DECLINING OR TERMINATING
REPRESENTATION
“A lawyer shall not represent a client or shall
withdraw from a case if:
• The representation will result in violation of the
Rules of Professional Conduct or other law.
• The lawyer’s physical or mental condition
materially impairs the lawyer’s ability to represent
the client.
• The lawyer is discharged.”

18. 6. Be cautious when doing business
with a client.

19. CONFLICT OF INTEREST
A lawyer shall not enter into a business transaction with a
client or knowingly acquire an ownership, possessory, security,
or other pecuniary interest adverse to a client unless:
• The transaction and terms are fair and reasonable to the
client and are fully disclosed in writing in a manner that
can be reasonably understood by the client.
• The client is advised in writing and is given the opportunity
to seek advice of independent legal counsel.
• The client gives informed consent, in writing signed by the
client, to the essential terms of the transaction.
Arizona Rules of Court: ER 1.8

20. “It is violation of disciplinary rules pertaining to
attorneys for attorney to arrange loan between
client without revealing dual representation.”
In the Matter of a Member of the State Bar of Arizona, David I.
KALI, 116 Ariz 285, 569 P.2d 227 (1977)

21. “To meet the full disclosure requirement of rule regulating
a lawyer’s business relationship with his client, the
lawyer must give the client that information which he
would have been obliged to give if he had been counsel
rather than interested party, and the transaction must be as
beneficial to the client as it would have been had the
client been dealing with a stranger rather than with his
lawyer.”
In the Matter of a Member of the State Bar of Arizona, Robert T. NEVILLE,
147 Ariz 106, 708 P.2d 1297 (1985)

22. “A lawyer entering into a business relationship with a
client must not only give a full explanation of the
divergence in interest between the lawyer and the client
and an explanation about the need to seek independent
legal advice, but must also give a detailed explanation of
the risks and disadvantages to the client which flow from
the relationship.”
In the Matter of a Member of the State Bar of Arizona, Robert T. NEVILLE,
147 Ariz 106, 708 P.2d 1297 (1985)

23. 7. Fee Agreements

24. FEES
“A lawyer shall not make an agreement
for, charge or collect an unreasonable
fee for an unreasonable amount of
expenses.”
Arizona Rules of Court: ER 1.5

25. “If at conclusion of a lawyer’s services it appears
that a fee, which seemed reasonable when agreed
upon, has become excessive, attorney may not
stand upon the contract but must reduce the fee.”
In the Matter of a Member of the State Bar of Arizona, John F.
SWARTZ, 141Ariz 266, 686 P.2d 1236 (1984)

26. 8. Document client identity.

27. 9. Document the scope of your work.

28. SCOPE OF REPRESENTATION
A lawyer shall abide by a client’s decisions
concerning the objectives of representation and
shall consult with the client as to the means by
which they are to be pursued.
Arizona Rules of Court: ER 1.2

29. ALLOCATION OF AUTHORITY
BETWEEN CLIENT AND LAWYER
A lawyer is not required to pursue objectives or employ
means simply because a client wishes them to do so.
A lawyer and a client may disagree about the means to
accomplish the client’s objectives. If it is impossible to
come to an agreement, a lawyer may withdraw from
representation.
The client may authorize the lawyer to take specific action
on the client’s behalf without further consultation.
Arizona Rules of Court: ER 1.2

30. 10. Document key decisions.

31. Questions?