Once you have chosen your entity through which you practice law, determined the physical location where you will practice, set up your computer, obtained insurance, and set a budget, you are ready to begin the practice of law. Hurray!

Now what?

In this section, we will take a look day-to-day operating issues. 


 

Case Acceptance and Client Screening

It is tempting (and sometimes necessary) as a new lawyer or at the start-up of your own firm to take whatever clients or cases walk in the door. Even the most successful lawyers sometimes suffer from the fear that the most recent client that engaged the attorney will be his or her last. But there are dangers in accepting every case. Lawyers who fail to initiate some discipline in the types of cases they accept early in their practice are the lawyers who eventually find that they are not managing their law practice - their law practice is managing them.

In the small firm, this often leads to overwork, mistakes, errors in judgment, missed deadlines, lapses in communication with clients, strained firm financial and labor resources; and, finally, an unprofitable and stressful practice. The dangers do not stop there. The lawyer's personal life can then become affected in very negative ways. Malpractice claims and ethical complaints can jeopardize the lawyer's career and can contribute to depression, failing personal relationships or substance abuse. Case acceptance criteria or guidelines, therefore, are an essential management tool for the practice of law, particularly in the small firm.

Large firms must also be vigilant in analyzing their practice mix. The types of problems arising in larger law firms when they fail to control their practice or case mix are usually internal ones. Equity in partner compensation is difficult when the practice areas within a firm do not generate compatible billing rates. The marketing dynamics of certain practice areas can be offensive to other members of the firm and firm clients. Client mix can also become an issue. Proper and profitable legal and non-legal staff utilization can also be an issue. A practice area that is more labor intensive than others may strain the resources available to other practice areas. The viability of a larger firm can be threatened if proper consideration and attention is not given to practice and case mix. Case acceptance guidelines in the larger firm, therefore, focus the firm on the most compatible and profitable types of practice areas and mix and help to reduce the internal conflict in a large firm.

Establishing Case Acceptance Guidelines

Establishing case acceptance guidelines can be as simple as making a list of clients, case types or practice areas that you prefer not to handle. You may develop criteria within certain practice areas that must be present in a case in order for you to accept it (i.e., clear liability, insurance coverage, etc. in personal injury cases, for example). You may decide that you don’t want to handle certain types of matters (i.e., domestic matters, real estate, bankruptcy, contingency fee work). With experience, you may determine that certain client characteristics are difficult for you to work with. Your guidelines can remind you to look for those characteristics and steer away from clients who possess them.  Don’t forget to use referral of the cases that you decline because they are outside of your practice area or more complex than you wish to tackle as an opportunity to market yourself to fellow attorneys, who will then perhaps refer cases to you in return.  If you determine that the client does not have a good case, do not refer them on to another attorney, who may resent the waste of their time.

Factors that may be considered in establishing case acceptance guidelines are:
• practice areas the lawyer desires to develop or in which he or she has expertise
• types of cases within practice areas for which the lawyer has expertise or desires to develop
• the types of clients with whom the lawyer desires to work
• the revenue generated by selected practice areas or case types
• the labor and cash requirements of the firm called for with certain types of cases or practice areas, and the risk associated with losing the case if the matter is one which would be taken on a contingency fee basis
• facts that must exist in certain types of cases (i.e., clear liability, insurance coverage, etc., in personal injury cases)
• the type of fee arrangement of the case (i.e., hourly, flat fee or contingency)

It should be a firm policy that each case be analyzed by a partner (or a committee of partners in larger firms) prior to acceptance based on your firm's case acceptance guidelines. Consistent compliance with pre-established case acceptance guidelines will help protect the lawyer and the firm from the types of problems mentioned above.

Case and Client Screening

Once case acceptance guidelines are established, case and client screening procedures should be developed. Proper case and client screening assists the attorney in identifying whether the case falls within the pre-established case acceptance guidelines.

Case and Client Screening Procedures
As previously stated, case and client screening is the process by which information is obtained which will enable you to make an informed decision regarding whether  the matter meets your case acceptance guidelines. Pre-screening may expose other information which will assist you in evaluating the prospective client. Finally pre-screening provides the opportunity for you to communicate important information to the client about his or her case and to establish realistic expectations.

Case and client screening procedures should include the following components:

Client Pre-screening. Before accepting a new client, you should:

• Conduct a telephone interview with the client to obtain initial client and case information which will be reviewed to determine if a face-to-face interview is warranted. A staff person should conduct the telephone interview when at all possible.  In certain types of litigation, especially in the area of domestic relations, callers are often simply looking for free legal advice.  
• Conduct a face-to-face client interview with the client to obtain client and case facts and to observe the demeanor of the client. The attorney should conduct the face-to-face interview. In addition to questions relating to fact, the face-to-face interview should also provide the following information or impressions:
• Has the client engaged or attempted to engage other lawyers for this case? If so, why was the case rejected by one or more lawyers?
• What is the client’s attitude toward other professionals such as doctors, accountants, bankers, lenders?
• Does the client have a reasonable approach to the case?
• Does the client agree with the fee arrangement and is the client able to pay the fees for your services?
• Is the client willing to pay a retainer in advance of services rendered?  It may be appropriate to give clients an idea of what retainer they might expect before scheduling an appointment, to ensure that the retainer will not be out of their price range.  Additionally, it may be a good idea in some types of hourly cases to charge a consulation fee.  This will help you avoid unintentionally providing free legal advice.
• Does the client have all of the documentation associated with the case and is he or she prepared to submit it to you?
• Complete a New Client Information Sheet. This form is for firm use in opening the client’s file, tickling the file for important dates, deadlines and file review dates, and performing a conflicts check.
• Complete a client/case questionnaire. This type of questionnaire varies with practice area or case type. This form is designed to provide all client and case facts and to document the sending of engagement/non-engagement letters and other appropriate forms.
• Complete a conflict-of-interest check. The New Client Information Sheet should provide space for the listing of related and adverse parties to the case. This list should be checked against the firm’s conflicts information to be sure no actual or potential conflicts exist that would prohibit the firm from accepting the case.

Case Analysis

Once client and case information has been obtained the solo practitioner, partner or committee of partners should review the information against the firm's case acceptance guidelines. In doing so, the following factors should be considered:

• Do the facts of the case support proceeding with the case?
• Your expertise and experience with similar cases.
• Your availability to handle the case.
• Your "gut" reaction to the client and the case.
• The prospective client’s attitude toward the case (e.g., unreasonable expectations for the case, attempts to tell you how to handle the case, unreasonably focused on winning at all cost).
• The ability of the client to pay for services provided and advance expenses. This is particularly important in risky cases.  In contingency fee cases, the likelihood of success versus the financial investment, given that if you lose not only will you not be compensated for your time, but you will also likely be out of pocket the money that you have fronted for case expenses.
• Case value vs. cost to represent (use of firm resources, expense advance requirements, loss of opportunity).

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Establishing Realistic Expectations

After the screening process has been completed and a decision to represent the client has been made, the attorney should discuss the merits and problems of the client’s case with the client. It is important that the attorney convey verbally and in writing (via an engagement letter) the following to the client:

• The issues involved with the case.
• The problems regarding the case.
• The process involved in pursuing the case.
• The client’s obligations throughout the case and any specific requirements of the client.
• The estimated time frame for case resolution.
• The economics of taking the case to trial or settling the case.
• The attorneys and/or staff who will be involved with the case.
• How the firm will manage the case.
• How the firm will communicate case status with the client.
• Warning: Avoid any guarantees to the client regarding the outcome of the case.

Remember, that you need for your client to have signed a retainer agreement or contract for representation which demonstrates their clear understanding of what they have hired you to do and what the cost will be for that work.  Case acceptance guidelines and good client and case screening procedures are the first steps in building a profitable, quality practice. Doing good work will ensure that good clients and cases continue to walk in the door.

Resources used for this piece and which may be beneficial to you in establishing case acceptance and client intake procedures are:

The Lawyer’s Desk Guide to Preventing Legal Malpractice, American Bar Association Standing Committee on Lawyer’s Professional Liability. (Available through the TNBAR Management Services Library.)

Risk Management, Survival Tools for Law Firms, by Anthony E. Davis, ABA published jointly by the Section of Law Practice Management and Center for Professional Responsibility. (Available through the TNBAR Management Services Library.)

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Case Management

Case management is important, particularly for the solo or small firm practitioner. In order for an attorney to adequately and responsibly manage their case load, certain procedures must be in place.

Case or File Checklist Forms
When opening a new file, a checklist should be developed for all of the tasks, dates and deadlines that are associated with the file. Tasks should be assigned to the appropriate people with dates for completion. Such tasks, dates and deadlines should also be entered into a tickler list or calendar that is maintained currently.  You should always have at least two different ways that you are reminded of critical dates related to each matter that you handle.

Automated Case Management Systems
Use of an automated case management system is recommended. There are numerous systems available on the market.

Routine File Review
Files should be pulled every 30 to 45 days for review to be sure the attorney has performed all the tasks needed. This is also an excellent time to communicate (either by phone or in writing) with the client about the status of their matter. Routine review will also assist in moving cases along to resolution.

Regularly Scheduled Meetings
Attorneys and appropriate staff should meet weekly to discuss the week’s calendar and each person’s respective tickler list. The status of client files should be discussed. Questions and issues relative to client files could be discussed.

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Client File Management and File Retention

How much time do you spend looking for a file? How much time do you spend rifling through files to find a particular document or the address of opposing counsel? How much time do you (or your staff) spend filing? Most likely your answer will be, "too much." The law business is a paper-intensive one. If not managed properly, the paper will overwhelm any filing system you may have in place. Software applications such as word processing applications, document managers and case management systems, provide a way to tame the paper-tiger and can reduce the amount of time spent searching for and rifling through a file. But, as with any system in the law office, good manual systems must be in place in order for the automation of those systems to be successful. As is true with any system, the elements of consistency, discipline, development of procedures and compliance with those procedures are necessary for the system to work.

But, beyond improving efficiency, there are ethical and malpractice considerations relative to client file management. The attorney has a duty to preserve a client’s confidences and secrets. Satisfaction of this duty extends to protecting the documents and materials which are obtained or created in the representation of the client. Certainly, a standardized method of labeling client files, contemporaneous filing and returning documents to files and files to their proper location are essential to ensuring protection of client confidences and secrets, appropriate identification of files and the preserving of client property.

File Set-Up - Physical File
File set-up (the set-up of the physical file folder) should be consistent. Files should be named consistently by name or number or a combination of both. File labeling should be consistent for all files in the office. All files should be set up to include various folders for the different types of documents that are maintained there; i.e.,

• client information
• correspondence
• medical records
• interrogatories
• invoices
• attorney notes
• research
• pleadings
• miscellaneous

Note: Documents, attorney notes and other correspondence that belong to the firm and are not appropriate to turn over to the client at the end of the representation should be filed in a separate folder in the event the client file is to be turned over immediately. This will enable the attorney or staff person to easily purge the file of these documents prior to turning the file over to the client.

File Set-Up (Electronic File)

The same consistency should also be present in the electronic filing (saving) of documents within the firm’s word processing system. The firm should discuss and agree upon a standard protocol for saving documents so that they can be easily accessed by all of the users in the firm. A simple protocol could be as follows:

Attorney name/client/matter name (or number)/correspondence/letter, date.doc

You might choose other protocols which start with client name or document name or type. You may also create a forms file for documents that can be re-used in various matters. Regardless of the protocol, it is important that all users understand the protocol and consistently name (save) their documents accordingly.

It is also helpful to place the file name on the bottom of your documents. This helps in retrieving documents within the word processing system; it expedites filing (particularly when a client has more than one matter) and assists in posting the cost of copies or postage to the proper client account.

Contemporaneous Filing
Filing should be performed as a task is completed or at least by the end of the day. Documents should be filed in reverse-chronological order. All documents or files that are ready for re-filing should be placed in a central location (if files are centralized) or the secretary’s work area (if files are decentralized) for re-filing.

Scanning of incoming documents into the client’s computerized file should be considered. This allows for a complete electronic version of the client’s file and reduces the need to pull the physical file to review a document or file status.

File Location
Although housing active files in a central location is usually recommended, it is many times not practical because of the configuration of office space or lack of a central space to house all of the firm’s files. Whether files are centrally located or scattered throughout the office, a file check-out system should be in place so that files can be easily located. The use of a check-out card indicates that the file has been pulled intentionally (vs. being mis-filed), when the file was pulled and by whom. A file check-out system may also be a part of the firm’s central file tickler system.

Client Confidentiality
The duty to protect client confidentiality extends to the management of client files. Attorneys and staff do not always realize that an office environment where files and documents take up every available counter and desk top is not only inefficient and chaotic, but is also exposing the firm to risk of compromising client confidentiality. In order to ensure that client confidentiality is not compromised:

• Filing should be performed daily.
• Files not being worked on should be housed in filing cabinets.
• Client files or documents should never be left in public areas or conference rooms.
• Persons not associated with the firm should not be allowed the use of attorney offices or firm conference rooms until those areas have been purged of all client documents and files.
• Client information should never be released without obtaining the client’s written consent and the responsible attorney’s authorization to do so.

File Status Checklist
Use of a file journal or File Opening Checklist will enable the attorney to quickly ascertain the status of the file. The checklist should indicate all of the critical dates associated with the file. Tasks, activities or events identified at file opening which are required to "work" the file to completion and their associated due dates should also be indicated on the checklist. The checklist form should have a place where the tasks can be checked off as having been completed and by whom. Events such as requests for records, receipt of same, witness contacts, meetings with the client and any other pertinent information can be listed on the journal or checklist. The journal/checklist can be color coded to allow for easy access.  Always include a place for case-specific tasks, as each case is unique and there may frequently be a need to add to the checklist.

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Client File Retention

There are two sensitive areas of file retention - the turning over of files to clients and how long to retain files once the representation is complete. There are both ethical and malpractice considerations.

Turning Over the File to the Client
The firm’s file retention policy should address and instruct attorneys and staff as to the circumstances under which client files or information can be turned over to the client or released. Such a policy should include the following:

• Client files should be turned over promptly at the client’s request.
• Authorization to turn the file over should be obtained (if possible) from the responsible attorney prior to turning over the file to the client.
• The client’s file should be organized so that documentation or notes which belong to the firm can be easily removed from the file in the event the file has to be turned over immediately.
• A copy of the client file should be made prior to turning it over to the client. This copy is for the firm’s records.
• Original documents and unique items (photos and personalty) should be returned to the client.
• A receipt listing the file contents and property returned to the client or turned over to new attorneys should be signed by the client and retained by the firm.  Never allow anyone other than the client to retrieve the client’s file without written authorization by the client. 

The Duty to Maintain Fiduciary Records

ABA Informal Opinion 1384 (31477)

"A lawyer does not have a general duty to preserve all of his files permanently. Mounting and substantial storage costs can affect the cost of legal services, and the public interest is not served by unnecessary and avoidable additions to the cost of legal services. But clients (and former clients) reasonably expect from their lawyers that valuable and useful information in the lawyer’s files, and not otherwise readily available to the clients, will not be prematurely and carelessly destroyed to the clients’ detriment."

Discussion

A file retention policy should address a number of issues relative to the disposition of client files. The most important of these is the way in which client files are closed or moved to inactive status and the destruction of files.  You need a policy regarding the storage and destruction of closed files.

Practice Management Considerations - Closed File Procedures

A file closing policy should be created. A File Closing Letter should be sent to the client at the end of every representation stating that representation is terminated and the file is being closed. Best practices for the File Closing Letter and file closing policy are:

• Should be sent immediately after matter is closed.
• Should explain any remaining duties of client or attorney.
• Should include a final bill.
• Should include original documents.
• Should contain information about how long file will be retained before it is destroyed.
• May include client survey requesting the client’s opinion on the service received.
• Prepare the file for closing (See File Closing Checklist).
• Be sure all original documents have been filed or recorded.
• Prune file before file is closed.
• Be sure all original documents have been returned to the client.
• Check to see if any documents should be placed in the office form file.
• Check to see that all duplicate documents have been removed; all documents have been filed and all loose documents braided down.
• Public documents need not be retained (i.e., pleadings, deeds and probated wills), but if you have the space to retain them, it is a good idea to do so.
• Private documents should be retained in entirety for retention period (i.e., discovery, correspondence, memoranda, client communication regarding disclosures, correspondence, telephone conversations, and memoranda explaining the nature, extent, manner and options of legal services, etc.).
• Attorney should use his or her discretion as to what should be retained in the file and how long the file should be retained based upon his or her experience with the client and case facts in order to be able to successfully defend him or herself against any future malpractice claims.  Never destroy a will file until the person has died and there estate has been fully probated, and do not destroy a file involving a domestic relations matter where the parties had children until the youngest child has attained the age of nineteen.
• Check to be sure a final bill and file closing letter has been sent.
• Be sure all future docket dates have been placed on the calendar.
• Be sure a destruction date has been assigned and placed on the calendar.
• Assign a closed file number. Use a number other than the file number - a closed file number will simplify the filing of closed files in the order they are closed. Reshuffling files on shelves or in boxes to accommodate files closed later than others is eliminated. Using the year as the first two digits or last two digits will help identify how old the file is.
• Files can be placed on shelves or in boxes in numerical order
• Development of closed file inventory information; File/matter name, Responsible attorney, Engagement date, Termination of representation date, Date file is closed (internally), Closed file number, Closed box number; Closed box location; and Destruction date, if any.
• Choose offsite storage in a storage facility.
• Develop a file retention/destruction schedule
• Suggested period for retention of client records is 10 years.
• Suggested period for retention of escrow and trust account information is 5 years.

Exceptions to retention schedule may include:
• Will and estate matters
• Client (legal) disability such as age or incapacity
• Real estate matters
• Contracts, mortgages and other agreements that are still being paid off at the end of ten years
• Uncollected judgments
• Files that show a tax basis in property - retain until property is sold or transferred
• Criminal law cases - should be kept for one year after criminal is released from custody
• Support and custody cases - retained for one year beyond the date that the last payment becomes due or the youngest child attains the age of nineteen, whichever is later
• Corporate books and records - retained indefinitely
• Adoption files - retained indefinitely
• Files of problem clients

Repeat: Attorney should use his or her discretion as to what should be retained in the file and how long the file should be retained based upon his or her experience with the client and case facts in order to be able to successfully defend him or herself against any future malpractice claims

Practice Management Considerations - File Destruction
Provide notification to client of the firm’s intent to destroy the file and the scheduled date of destruction. A Fee Agreement or Engagement Letter should inform the client that you will be destroying the client file and when it will be destroyed. The client’s signature on the letter provides client consent. A letter should be sent to the client notifying of file destruction (if separate from closing letter). Destruction date should be established and diarized.

Protection of client confidentiality.
• Files should be destroyed in a manner that continues to protect client confidentiality and ensures complete destruction of the item. Shredding of documents in-house or through a reputable shredding company which provides confirmation of destruction are the best methods of file destruction.

Maintain a permanent record for all files that are destroyed (see closed file inventory information for type of information to be maintained).

Remove certain documents prior to destruction and maintain in the firm’s permanent client file.
• Copy of letter concluding legal representation.
• Copy of letter notifying of file destruction.
• Original retainer agreement.
• Original New Client Information Sheet and File Opening Checklist.
• Any other critical information (based on client/matter).

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Client Relations and Communication

Client communication (or lack of adequate client communication) represents a significant percentage of the total number of malpractice claims and ethical complaints received by insurers and the Board of Professional Responsibility. The following general procedures should be implemented in a law practice to avoid client communication problems.

Correspondence & Communication
The attorney should communicate with the client and document all aspects of case acceptance, declination and status to the client as follows:

• Use engagement letters and/or fee agreements for all new matters.
• Use non-engagement letters for all matters declined.
• Use file-closing letters for all matters.
• Copy client with all correspondence/documents relating to client matter.
• Confirm in writing substantive issues of case, the process required to handle the case, legal advice, choices, and other information that may be difficult for the client to understand or contrary to what the client expects or wants to hear.  If your client declines to follow your advice on any matter of significance with regard to their matter, you should document the fact in a letter to the client, list what course they have chosen, and acknowledge their right to do so as the client. 
• Respond within seven days if reciprocal communication is required.
• Return phone calls within 24 hours, and if you cannot do so personally, have someone do so on your behalf.  Also use out-of-office messages on your voicemail with instructions for who to contact at the firm in the event of an emergency if you are going to be out for any significant period of time.
• Use client surveys to determine level of client satisfaction with services rendered.
• Client dissatisfaction should be addressed immediately upon attorney’s notice of same. Develop standard procedures for handling client complaints.
• Send detailed client billing monthly - regardless of fee arrangement. Monthly detailed billing apprises the client of the work you are doing for them and the cost of the work to date.

But It's an Emergency! Communicating with Clients
Many lawyers at some point contemplate whether they should give their cell phone number to clients for use in case of an emergency. It's a simple question without an easy answer. It depends upon the nature of the practice, the location and your comfort level of allowing clients to intrude into your personal time. If you do decide to let clients know you are available at home in the case of an emergency, then it is critical that you and not the client determine what constitutes an emergency. You should put your guidelines in writing for distribution to all clients (especially all new clients) describing when it is and when it is NOT appropriate to call you after hours for an emergency. Decide whether you want to charge extra for this service, especially for clients who use your cell number as a convenience, rather than for true emergencies. Disclose this extra charge to clients in your fee agreement. (One attorney weighing in on this issue advised that her retainer agreement called for a charge of twice her normal hourly rate for calls received after hours and on weekends if they were not placed to her office; however, she further advised that never actually charged the additional fee if there was a true emergency, but rather the provision simply deterred abuse.)  In addition, you may also want to consider having a separate line for these client emergencies.

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Conflict of Interest Systems

It is essential (and absolutely required by most malpractice insurance carriers) that you institute a conflict of interest system.  While you may initially remember the name of every client and opposing party in all of your cases, as your practice continues, your memory will fade.  You must have a designated system to check for conflicts when new potential clients walk through your door.

Common Areas Where Conflicts Arise:

• Representation of a client that is directly adverse to another client
• Representation of multiple parties
• Representation of a client when the lawyer has a financial interest in the client entity
• Representation of a client when the lawyer serves as an officer or director for the client entity
• Accepting stock in lieu of fees
• Lawyer engaging in business with a client
• Failure to document non-representation

Features of a Good Conflict System:

• The system is integrated with other systems; i.e., time and billing and case management;
• Provides easy access to conflict data for everyone in the office;
• Checks are conducted at the three key stages of the representation: before face-to-face consultations, before a new file is opened and when a new party enters the case;
• Searches check for varying spelling of names and all prior names;
• Conflict entries show the party’s relationship with the client;
• Checks are conducted when new attorneys and staff members join the firm by reference to their  list of past clients;
• All parties connected with a case are entered into the system; and
• Conflict searches are documented in the file.
• A new client list is circulated weekly to all lawyers and staff in the office and is reviewed for possible conflicts.

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Tickler and Calendar Systems

There are two systems that each lawyer and law firm should have in place to ensure that deadlines are not missed and files are not neglected - the Tickler System and the Calendar System.

Systems for reminding you to work on files are called Tickler or Diary Systems. The tickler system is one of the most important systems in the law office. It assists the lawyer in anticipating future deadlines, planning work and preventing files from being neglected.

Systems for reminding you of critical deadlines and appointments are called Calendar or Docket Systems.

In a busy law practice, the tickler and calendar systems are absolutely necessary to prevent malpractice. Most professional liability insurance carriers require a description of the firm’s tickler and calendar systems on the insurance application and require that there be both a manual and computerized system.

Characteristics of a Good Tickler and Calendar System
The mere existence of a calendar or tickler system in your law firm does not ensure that deadlines won’t be missed or files neglected. These systems must not only be in place, they must be properly managed, consistently utilized and attorneys must respond appropriately to them. Precautions must also be taken to prevent error and to ensure redundancy. The foundational elements of a good calendar and tickler system include:

• Immediate and automatic entry of all dates.
• Entry of reminder dates in association with critical deadline dates.
• Entry of follow-up dates in association with deadline dates.
• Back-up or duplication of the main calendar and tickler systems. (Both an automated and manual system are recommended.)
• Central location of tickler and calendar systems for easy access for everyone in the office.
• Tickler entries for pulling the appropriate file should be made in conjunction with the entry of a calendar date for that file.
• There should be a tickler entry for every file to ensure that all files are reviewed regularly.
• Appropriate response by the attorney to the reminders and deadlines posed by the systems.

Other desired system characteristics are:

• The system be user-friendly and easy to maintain.
• Written system procedures are in place and adequate staff training on system use is done.
• Forced compliance with procedures - failure to enter dates or respond appropriately to them should result in a reprimand or some other disciplinary action.
• Tickler and calendar information should be duplicated and maintained offsite in the event of disaster.
• The tickler and calendar system are two separate systems, but should serve as back-ups to each other. Cross-checking of dates should be possible between the two systems.
• Ideally, one person should be assigned to manage the tickler system and another assigned as a back-up.

File Tickler Systems

A file tickler system is an organizational tool that when used appropriately will limit the possibility of missing deadlines and neglecting files. It can be a planning tool, an organizational tool, and can provide peace of mind to the attorney balancing a heavy caseload. It requires discipline, accuracy, consistency and the appropriate response by the attorney and his or her staff.

Use of File Tickler Systems

Discipline - Establish a Routine

Establish a daily routine by which the file tickler system is used. Pull all tickled files for the day each morning. Files should be reviewed by the attorney and his or her secretary or paralegal. Files that require no immediate attention can be retickled and refiled. However, the attorney may want to take this opportunity to call or send the client a letter updating them on the status of their case.

The mail can also be reviewed during this time. Based on file and mail review, work can be planned and assigned for the day. New dates can be tickled based on this review.

Accuracy and Consistency - Setting Tickle Dates

There are various types of tickle dates that should be entered into a file tickler system. Tickle dates fall into the following categories:

• critical or deadline dates - dates that cannot be missed, such as a time limitation, especially a statute of limitation or repose, or hearing date;
• task completion dates, such as completion of a pleading;
• a date that should not be missed, such as a follow-up date;
• an informational date, such as a date when certain information is expected to be received; and
• a periodic file review date.

Dates vary in significance and should be protected by the use of extra tickle or reminder dates. It is recommended that at least three (3) reminder dates be set in association with a critical date - one (1) month, two (2) weeks and one (1) week prior to the critical date or deadline.

See Suggested Dates and Deadlines list for a list of suggested dates and deadlines to be tickled.

Appropriate Response - System Compliance

Consistent compliance with procedures is necessary to avoid system failure. The attorney must make it absolutely clear that:

• All new files must be assigned a file review date (at least) which is to be entered into the tickler system immediately upon opening a file. Other known critical dates should also be entered into the system.
• No file is allowed to be pulled out of the file cabinet without following file check-out procedures.
• No file should be returned to the file cabinet until retickling of the file is performed.
• Attorneys and staff should appropriately respond to the reminders and deadlines and not procrastinate.

Tickler Systems in Case Management

Plan future work. The file tickler system can assist the attorney in managing his or her workload. At the opening of a file, tasks can be assigned and due dates set for the work to be done on the file. Blocks of time for working on cases or files can be scheduled just as are critical or task completion dates. Tickling times for case work allows you to complete work in an orderly fashion. Your availability to take on a new case can be more adequately measured and realistic estimates of when work will be completed can be given to the client.

Preventing files from being neglected. Use the file tickler system to remind you to review each open file on a regular basis. It is recommended that open files be routinely reviewed every 30 to 45 days. This is another opportunity to communicate with your client as to case status. Frequent communication with your client will enhance your attorney-client relationship and serve to keep your client happy.

Stay organized. A tickler system and to do list alleviates the need to keep files on your desk. Rather than keeping files on your desk to remind you of work to be done, the tickler reminder will serve that purpose. Files can be kept in the file cabinet until the day arrives that you’ve scheduled work on that file.

Reducing the number of files and amount of paper on your desk will help in file and document location, reduce your stress and help you organize your work more effectively.

Tickler Systems in Office and Personal Management

The file tickler system can and should be used for office management as well. Important dates, routine administrative tasks to be performed on a weekly, monthly, quarterly or annual basis should be tickled as well. In small or solo practices, even personal dates and deadlines can be included in such a system. A sense of control and balance in both the attorney’s practice and life contributes to a state of well-being. The file tickler system can assist in these areas as well.

Types of Tickler Systems
Manual Tickler Systems

Materials
The following components are needed for a manual tickler system:

• Two (2) index card boxes large enough to hold 3 x 5 forms - one is the file tickler box and one is the client control box.
• Two (2) sets of 3 x 5 dividers (for 1-31 days)
• One (1) set of 3 x 5 dividers, labeled January through December.
• One (1) blank set of nine (9) 3 x 5 dividers. These are your annual tab dividers.
• Date Reminder Forms: These are 3 x 5 three-part forms that are self-imaging and color coded.
• One (1) set of 3 x 5 dividers, labeled with names of lawyers and other staff members who would be pulling files.

Procedures

STEP 1: When a file is opened a New Client Information Form and/or a File Opening Checklist should be completed which identifies:

• event dates to be entered into the tickler/calendar system.
• three (3) advance warning dates for each event date.
• tasks to be completed for the file.
• completion dates for each task.
• three (3) advance warning dates for each task completion date.
• staff assignments for each task.

STEP 2: Complete the Date Reminder Form which is a three-part form. Set the deadline date, the first advance warning at one (1) month prior to the deadline, the second advance warning at two (2) weeks prior to the deadline and the 3rd advance warning at one week prior to the deadline. (Note: Event and warning dates are also entered on a firm-wide calendar. See the section entitled Calendar Systems.)

• The bottom copy (red) of the three-part form is filed behind the deadline date for the event date or task completion deadline. (Note: The red card always remains filed behind the deadline date. It does not move unless the deadline is changed or has arrived.)
• The middle copy of the date reminder form (yellow) is filed behind the first advance warning date. (Note: the middle card (yellow) "floats" through the box, beginning at the first advance warning and proceeding toward the ultimate deadline. Also note: If the ultimate deadline changes, all copies of the form must reflect that change and be re-filed accordingly.)
• The top copy of the form (white) is filed alphabetically in the client control file. This file is consulted when you want to see all of the upcoming deadline and warning dates associated with a client file. It is also a "back-up" system in the event the yellow copy is lost or the file tickler box is destroyed.

STEP 3: At the beginning of each day, the file tickler box is checked to see whether any tickler forms are behind the divider for that day. All files corresponding to the forms behind the divider for that day are pulled and distributed to the appropriate lawyer.

• The yellow tickler form for each file pulled is filed alphabetically in the front of the file tickler box, behind the tab of the attorney who has checked out the file.
• In the event the task to be completed by the day’s date cannot be completed, the attorney should note a new tickler date on the file jacket or on the file opening checklist inside the file. The legal assistant enters the new date on the yellow form for that file and re-files it behind the appropriate date divider in the file tickler box. (Note: The new tickle dates and the original advance warning dates may overlap. The yellow form should move as the attorney prescribes as the file is worked. Note also: it is recommended that the file opening checklist form be maintained and updated with the status of tasks associated with the file. In the event the lawyer is not available, another lawyer in the office can pick up the file and move forward with it. (See attached sample File Opening Checklist Form.)
• The white form is also updated with the new tickler date and returned to the client control file. The file is then re-filed in the file cabinet.

STEP 4: The front of the file tickler box should be checked at the end of each day to determine the status of the files that have not been returned. New tickler dates or other appropriate action or notations should be made to ensure that the file does not get buried on the attorney’s desk.

STEP 5: The client control box should be taken off site each night to prevent loss of tickler/calendar information in the event of a disaster.

NOTE: For longer term reminder dates, such as statutes of limitation and judgment renewals, forms are placed behind the year dividers. At the beginning of each year, that year’s reminder dates are reviewed and placed behind the month and day dividers.

Precautions

The index card tickling system works well if a new tickler date for each file is assigned and the tickler file card is placed behind a future date each time a file is returned to the cabinet. Filing, under this system, involves filing the files and filing the cards. The system quickly breaks down if a file is returned to the cabinet without re-filing the cards under a future date, or if a file is pulled from the cabinet without pulling the card and placing it behind the name of the person with the file. Most firms who have not automated these procedures do not have a manual "back-up" system for their manual tickler/calendar system. Should disaster strike the office, all of this information could be lost and client interests could be harmed.  While it is strongly recommended that you implement a computerized tickler system, it is still recommended that at least one of your other systems be a “hard copy” system such as described above.  The more ways you have to ensure that you do not miss important deadlines, the less likely you are to commit malpractice.

Computerized Tickler Systems - The "To-Do List"

It is clear that the correct use of a manual tickler system can be time-consuming and even cumbersome - especially when you duplicate the manual system in the event of disaster. However, automation of a system that has not first been successfully implemented manually may fail. Regardless of whether the system is manual or automated, the same elements and characteristics required in a manual system must also be in place in the automated system. There must be immediate entry of dates, duplication of data, consistency and accuracy in use as well as appropriate responses made to the system warnings and reminders. An automated system does reduce the time and paperwork associated with the manual systems, and  allows for easier planning and task assignment. An automated system will do many tasks (such as shift reminder dates for a changing deadline) automatically. It provides information at your fingertips regarding file status, reducing the need to pull the file (and possibly misplace it or the documents in it).

Computerized tickler systems (sometimes referred to as "to-do lists") enhance case management. Whether you are a solo practitioner with one staff person or a firm of several lawyers and staff, networking your computerized to-do list system will greatly increase the efficiency of file and case management.

File Opening - Assignment of Tasks.

At file opening, the lawyer can identify not only dates for file review but also tasks to be completed. He or she can assign tasks to a lawyer or staff member and enter target and deadline dates for the completion of each task. At the start of the lawyer or staff member’s day, the computer is turned on and on their to-do list will appear the name of the file to be pulled or the tasks they are to complete for that day. These tasks may have been entered by the user, after a conference or meeting with the lawyer when the file was opened. If the lawyer worked on the file after business hours, he or she may have entered task assignments for others in the office or deadlines into the system and those entries now appear on each lawyer and staff person’s calendar the following day.

Follow-Up

Upon task completion, the user can indicate such in the system. Uncompleted tasks will roll over to the next day. The lawyer can remain abreast of the progress of a file by pulling up the file name in the to-do list system at any time and reviewing completed tasks, uncompleted tasks and notes made on the file by those working on it.

Basic Features

Computerized tickler software applications should provide some basic features:

• Tickler systems should be networked systems where there is more than one attorney or staff member accessing files.
• Data entry can be performed by everyone, if desired.
• Information can be entered by the attorney for his tasks/dates as well as for tasks and dates he/she wishes to assign to others.
• Information should be accessible by all attorneys and staff.
• Roll-over for tasks that are not completed on the date scheduled to the following day.
• Upon computer start-up or opening of the application, such software systems should provide automatic reminders of tasks to be completed that day as well as reminders of tasks scheduled for previous days that have not been completed
• Tickler information can be sorted and viewed on screen or printed by client/matter, attorney/staff member, or date criteria.

Materials

• Date Reminder Forms
• New Client Information Sheet or File Opening Checklist forms

Procedures

STEP 1: When a file is opened a New Client Information Form and/or File Opening Checklist should be completed which identifies:

• event dates to be entered into the tickler/calendar system.
• three (3) advance warning dates for each event date.
• tasks to be completed for the file.
• completion dates for each task.
• three (3) advance warning dates for each task completion date.
• staff assignments for each task.

STEP 2: From the File Opening Checklist or new New Client Information Sheet, enter all identified critical dates and their reminder dates into the tickler system. (Note: new tickle dates can be entered at any time either by the attorney or by completing a date reminder form and submitting it to his or her secretary for entry.) All forms used for date entry should be filed in the client file.

STEP 3: At the beginning of each day, the tickler system, when accessed, will indicate the files to be pulled or tasks to be completed for that day. All files corresponding to the tickler information on screen are pulled and distributed to the appropriate lawyer. Information about the location of files can be obtained by reviewing the tickler system to see if that file was tickled to be pulled; and, if so, by whom.

STEP 4: In the event the task to be completed by the day’s date cannot be completed, the attorney can either allow the tickled file date to "roll-over" to the next day or assign a new file tickler date. Either way, the new tickler date should be noted on the file opening checklist or the outside jacket of the file and entered into the system (either by the attorney or his secretary). The file should be re-filed in the file cabinet until the next tickle date arrives.

Should a critical date or deadline change, the change should be entered into the system as well as the change in all associated reminder and follow-up dates. (Note: some systems which are "rules based" systems will automatically change the reminder and follow-up dates associated with a critical date when the critical date changes based on the intervals used in setting the original dates.)

STEP 5: Upon completion of a task, the tickler entry should be marked as completed.

STEP 6: The automated tickler system should be backed-up on tape and the tape taken offsite daily, or if possible, it is preferable to hire someone to perform your offsite backup on a daily basis, so that you do not have to rely upon your memory of that of one of your staff to take the tape with you. Reports of all tickler dates should be printed on a routine basis and also stored offsite.

STEP 7: A tickler report should be run daily and weekly and distributed to all attorneys and staff. These hard copies can serve as back-up to the system in the event the system goes down for a period of time.

Warnings

Like manual systems, computerized tickler systems require development of system procedures, consistent compliance with procedures by lawyers and staff and entry of all appropriate information and deadlines. Redundancy is also important in computerized systems. Computerized systems must be backed up daily and stored offsite. Printed reports of tickler dates should be distributed to lawyers and staff daily. Lawyers and staff may choose to keep their own tickler dates on a manual or personal computerized calendar in addition to the firm-wide tickler system. It is important that personal tickler calendars are "synched up" with the firm-wide system daily.

Calendar Systems

The "Calendar" is a device for monitoring event dates i.e., deadlines, filing dates, and court appearances for both your office and the opposition. The calendar is maintained in addition to a file tickling system, and the two serve as backups to each other. A lawyer is reminded of an important date or deadline by its appearance on the calendar as well as by the file’s reappearance because of a tickle date.

Use of Calendar Systems

As with tickler systems, a calendar system may be manual or automated. Ideally, you will have an automated system, backed up by a manual system. Regardless of whether your calendar system is manual or automated, steps should be taken to ensure that dates are properly calendared.

Calendaring All New Dates Immediately

Immediate calendaring of new dates is critical for an effective calendaring system. Here are suggestions for shortening the time between the receipt of a new date and its placement on the main calendar.

• New Client Information Sheets. A New Client Information Sheet should include a portion designated for the entry of important legal deadlines associated with the case; (i.e., statute of limitation, file review frequency and first tickle date.) The client intake sheet should be filed in the client file folder and submitted to the calendar controller for entry into the system.
• File Opening Checklist. A File Opening Checklist should be used when opening a new file. Critical dates should be identified when a new file is opened and a date reminder form completed for these dates. These forms should be submitted to the calendar controller for entry on the calendar as well as for filing in the file tickler system.
•Mail Handling . In the small office, the person opening the mail can be responsible for calendaring any critical dates indicated. All incoming mail should be date stamped and marked to indicate the critical date has been calendared. The critical date can be highlighted or checked to indicate it has been entered.
• Date Reminder Forms. Date Reminder Forms should be printed in three (3) part form and color-coded. Attorneys may want to carry some forms with them outside the office so they can complete the forms as new dates are received. Upon return to the office, the slips can be submitted to the calendar controller for entry and filing in the file tickler system.
• Access to the Calendar. The main docketing calendar should be maintained in a central location and accessible to all. Entries should be made in ink. Do not erase date entries as they are changed. Entries can be color coded for attorney or date type. Entries to the main calendar should also be made to the individual attorney and secretary’s calendars.
• Daily Conferences with Staff. Meet with your staff daily to confirm new calendar items and discuss tickled cases. This is an excellent time to review mail, update case status and assign tasks. Good communication can prevent calendaring errors.

Setting Reminder and Follow-Up Dates
All deadlines should be entered in the system as they arise. Reminder dates associated with each deadline should also be established by the attorney and entered into the system. Ideally, three reminder dates will be entered for each deadline: one (1) month, two (2) weeks and one (1) week prior to the deadline.

Follow-up reminders are also important. Follow-up dates serve to remind you that certain tasks were to be completed or actions taken. Without reminder and follow up dates, a critical date can be missed. Failure to respond to a critical date is a common type of malpractice.

As the case proceeds, the legal assistant should bring to the lawyer’s attention the reminder and follow-up dates and mark off the dates that have been completed.

Calendar Reports

Calendar entries for the day, week or month should be printed and distributed to everyone.

Types of Calendar Systems

Central Manual Calendar

In its traditional form, the docket calendar is a large desk-top calendar which is maintained in a central location and managed by one staff member. Lawyers and staff members submit a date reminder form to this staff person (calendar controller) indicating dates to be placed on the calendar. (Note: the date reminder forms should also be placed in the file tickler box. See the section entitled, File Tickler Systems.)

The calendar should be kept up-to-date and should be accessible to everyone in the office. However, only one person should be assigned the task of entering dates on the calendar. A back-up person should be assigned this task in the absence of the calendar controller.

The Computer Calendar

Firms of all sizes have begun to fully embrace automation in the managing of their calendar system. There are software applications specifically designed for use by law firms which combine calendar, tickler, to-do systems and case management. Calendars are also available with the various office suite applications. Lawyers should maintain individual manual or computerized calendars as duplicate calendars in the event of system failure.

Computerized calendars on a networked system allow individual calendar information to be accessible by all system users. It is easier to schedule meetings involving other attorneys or staff members when individual calendars can be viewed by everyone. Users can be notified when an event in which they need to be involved is scheduled and reply as to their availability - all through the computerized system. When a firm-wide calendar is needed, the calendar system will pull all of the individual calendars together into a large one.

Entries are easily modified. In some applications, predetermined reminder dates for each type of date can be established. When the calendar date is changed, all of the reminder dates associated with that date will automatically shift as well. The computerized calendar also allows for tickling events years in advance.

Daily, weekly and monthly calendars can be printed and distributed. Events can be calendared to come up on a recurring basis. Printed calendars can be stored offsite. In the event of system failure or disaster, the most recent calendar information is available to the firm. Finally, computerized calendar information can be backed-up and stored offsite as well.

Individual Calendars

It is quite routine for lawyers to keep their own personal calendars via a manual or automated system. Individual calendars are recommended only in addition to a central calendar. Both calendars must be updated currently. This is particularly easy now with the use of PDA’s. PDA technology also allows the attorney to check availability for court dates and meetings on the spot. The new date is recorded in the PDA and the PDA can then be "synched up" with the firm’s central calendar upon his or her return to the office.

In Summary

Tickler and calendar systems are important tools for the management of your law practice. They discipline the lawyer in the management of each file. They assist in case and time management. They ensure that deadlines are not missed.

The investment of time you make in managing your practice through the use of tickler and calendar systems will not only help to protect you from malpractice, but will provide you the peace-of-mind that you are not letting anything fall between the cracks.

Resources used for this piece and which may be beneficial to you in implementing a tickler/calendar system are:

The Lawyer’s Desk Guide to Preventing Legal Malpractice, American Bar Association Standing Committee on Lawyer’s Professional Liability. (Available through the TNBAR Management Services Library.)

Risk Management, Survival Tools for Law Firms, by Anthony E. Davis, ABA published jointly by the Section of Law Practice Management and Center for Professional Responsibility. (Available through the TNBAR Management Services Library.)

A Guide to Setting Up and Running Your Law Office, by the Oregon State Bar Professional Liability Fund.

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Protecting your Practice in the Event of a Disaster

In recent years, Tennessee has been the unfortunate recipient of terrible floods, tornadoes, and other natural disasters that have completely leveled law firms. Take this disaster plan self-audit to determine your state of readiness should disaster strike. In addition to the audit, this section contains information that is designed to assist you in the recovery process should a disaster strike.

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Preparing for a Disaster

Safety

• Do you have a written disaster response plan?
• Do you have a written evacuation plan for your office personnel in the event of fire, tornado or flood?
• Has the evacuation plan been distributed to everyone in your office?
• Is a person or group of people in your firm assigned the responsibility for evacuating everyone from the office or building in the event of a disaster?
• Do your employees know where the emergency exits are in your office and building?
• Have you selected a location outside your building for your employees to regroup in the event your office or building has to be evacuated?
• Do you perform emergency evacuation drills on some periodic basis?
• If your office is in a multi-story building, have you coordinated your office evacuation plan and training with that of building management?
• Do you keep emergency exits clear?
• Have you requested the fire marshal to inspect your office for possible fire hazards?
• Is emergency equipment on site and located throughout the office (i.e., fire extinguishers, walkie-talkies) and do your employees know how to use them?
• In the event personnel cannot be evacuated, do you maintain emergency supplies on site (i.e., flashlights, radios, batteries, bandages and other first aid material, blankets, food and drinking water)?
• Have you provided your employees with training in emergency first aid procedures and CPR?
• Do all personnel have a list of emergency numbers?

Business Continuity

If disaster struck and you could not access your office, could you continue business?

Communication

Do you have a written procedure for communicating with employees and clients in the event of a disaster?

• Do all of your employees have a current roster of firm employees, addresses and phone numbers that is kept at their home?
• Do you have a current list of clients, including contact names, addresses and phone numbers that is maintained off site?
• Do you have an "alert notification" telephone tree for all employees to assist with the dissemination of information in the event of disaster?

Records

Do you keep copies of "paper" documents critical to the continuation of your business off site? Such information would include:

• current client list, including contact names, addresses and phone numbers
• current docket or master calendar, including names of opposing and co-counsel
• firm business records; i.e.
• lease agreements
• partnership/shareholder agreements
• inventory of physical assets
• insurance policies, including name and phone number of agents
• equipment leases, warranties and maintenance agreements, contact names and phone numbers of equipment vendors
• list of library services, including your “electronic library” provider, name and phone number of representatives
• client documents: wills, agreements, settlements, corporate documents

Note: paper records that are updated on a weekly or monthly basis should be taken off site at least monthly, preferably weekly.

Data Back-Up and Storage

Do you perform computer data back up & storage on some frequent basis?

1. Examples of data and documents to be backed-up and stored off site at least on a monthly basis are:

• firm accounting data; i.e., financial statement, general ledger, A/P and A/R ledgers, trust and retainer account transactions and history
• current billing information; i.e., unbilled time and disbursements, and accounts receivable information
• payroll data and information

Examples of documents and data to be (ideally) backed up on a daily basis are:

• word processing documents
• firm accounting and client billing data
• spreadsheet and database information
• litigation support systems and data
• other practice management data

Do you maintain the most recent copies of your operating and application software off site? Examples of such software include:

• network and computer software
• telephone switch software
• voicemail software
• copy and call accounting software
• firm accounting and client billing software
• payroll software
• spreadsheet and database software
• practice management software
• library software

Note: If your accounting and client billing is not automated and you do not maintain paper copies of your accounting and billing transactions off site, you will likely lose a significant amount of that data in the event of a disaster which will severely hamper your cash flow in the weeks and months following the disaster. If your firm accounting and client billing are automated but you are backing up your firm accounting and client billing data on a monthly basis, you will lose the current month’s business transactions and time and billing transactions in the event of a disaster. It is preferable that this information be automated and backed up daily.

Office Space

Is there alternative space from which your firm could operate on a temporary basis?

• Your home
• Other vacant commercial space (Get to know a commercial real estate agent and/or get yourself on a mailing list from the commercial real estate companies for notices of vacant space in your area.)
• Other law firms (Enter into a reciprocal agreement with another firm to use each other’s facilities in the event of disaster.)
• Branch office within commuting distance

Office & Computer Equipment

Is your equipment adequately protected?

• Do you have a written procedure for shutting down critical computer equipment?
• Do you have a smoke detection device in or around your computer and telephone switch rooms?
• Do you have supplies on hand that will protect your equipment from water and debris; i.e., plastic dropsheets?
• Are you familiar with your office and computer equipment leases, warranties and maintenance agreements as to the obligations of your vendors to replace equipment damaged in a disaster? (Negotiate, if necessary, a provision in your equipment leases for equipment replacement in the event of disaster.)

Advice: Be a loyal customer to office equipment, computer equipment, software and supply vendors so that if disaster strikes, they will be loyal to you.

Insurance

Do you carry adequate insurance to cover all types of disasters? Does your policy cover the following types of losses?

• Replacement costs of office space, and of your current inventory of office equipment, computer hardware and software, valuable papers, library, and office furnishings
• Loss of income and extra expense
• Business interruption due to disaster that hits you directly or that prohibits accessibility to your office building even though your office is not damaged
• Malpractice coverage for possible missed actions as a result of business disruption
• Crime insurance
• Fidelity bond

Note: Be sure your policy covers your specific office address (specific floor), rather than just the building address.

No amount of planning will adequately  prepare you for  the disasters we have seen in the past year; however, planning will go a long way in assuring the personal safety of your staff and the continuation of your business should disaster occur.

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What To Do If You Have an Ethics Complaint

I just received a notice of complaint from the Board of Professional Responsibility. What do I do?

When you sort through your mail each day, you are hoping to find envelopes containing checks from happy clients who wish to pay you well for your excellent services. But what happens when you see the envelope with the return address from the Board of Professional Responsibility? Your hands begin to shake and you become instantly terrified. You open the envelope and find a notice that a complaint has been lodged against you with Board. What do you do?

1. Don't panic. You have merely been put on notice that a complaint has been filed. There has been no finding that you did anything wrong, and you will have the opportunity to present your side of the matter. According to the 39th Annual Discipline Report for Fiscal Year July 1, 2019 through June 30, 2020, 42% of complaints/formal proceedings filed during that fiscal year were dismissed as frivolous, and an additional 42% were dismissed after investigation. Only 1% of complaints/formal proceedings resulted in a public censure, and only 2% of complaints/formal proceedings resulted in suspension.

2. Contact your malpractice insurance carrier immediately. There is a chance that your policy will provide funding for legal counsel to defend your complaint.  Additionally, your policy may require that you notify your carrier immediately if you receive a notice of complaint from the BPR.  

3. Contact a reputable attorney who regularly represents attorneys before the BPR. Their guidance with your initial response can be invaluable. Remember the old adage about a lawyer who represents him/herself having a fool for a client.

4. Review Tennessee Supreme Court Rule 9 (Disciplinary Enforcement). 

5. DO NOT IGNORE THE NOTICE. RESPOND TO THE COMPLAINT — OR REQUEST AN EXTENSION OF TIME TO RESPOND — WITHIN THE TEN DAY TIME LIMIT PROVIDED IN THE NOTICE. Failure to respond may result in the suspension of your law license, regardless of the underlying complaint.

6. Remember that all attorneys make mistakes. Hopefully yours was not of the nature that will involve a disciplinary sanction being imposed against you, but even if you are ultimately sanctioned, you may receive only a private reprimand. If you know that you have made a mistake, the temptation may be to bury your head in the sand and not respond to the complaint out of fear. You must overcome your fear and respond; otherwise, you are putting your ability to practice law at serious risk!

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