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tion that you were going to do something thatwasn’t even on your radar screen.

Clients have expectations of their lawyers,sometimes reasonable and sometimes not.Client disappointment over unexpected resultsleads to malpractice claims. Many times, disap-pointment can be managed through propercommunication with the client. Maintainingeffective communication concerning expecta-tions is an essential skill in guarding againstprospective malpractice liability.

Lawyers can learn to maintain better clientrelations by viewing the world periodically fromthe client’s perspective. If you were paying thegoing hourly rate to hire a lawyer, what wouldyour expectations be? Visualizing yourself as theclient provides a valuable perspective for avoid-ing legal malpractice claims.

Litigation is an inherently stressful anduncertain means of conflict resolution. Whilethe legal representation you provide is justanother matter of your daily business, it may bethe single most important thing going on in theclient’s life. A prudent lawyer must appreciateand understand the case from that perspectiveand learn to reasonably manage the client’sexpectations.

The standard of care does not require alawyer’s conduct to be perfect. Unless the lawyer

by Robert K. Sall

Lawyers often ask what can be done toavoid a legal malpractice claim. The firstthing that comes to mind is obvious—don’t make a serious mistake. Looking at

the array of sticky notes pasted to the computerscreen, I’m reminded constantly to go over whatis on my plate and keep a management list. Butavoiding malpractice is not just about manag-ing deadlines and paper flow. Many legal mal-practice claims arise from the client’s expecta-

is a specialist, he or she must only perform as anordinary lawyer would under like circumstances.By accepting employment to give advice or ren-der legal services, the lawyer impliedly agrees touse ordinary judgment, care, skill, and diligencein performing the tasks undertaken. Nichols v.Keller, 15 Cal.App.4th 1672, 1682 (1993). Inorder to do so, the lawyer must communicatewith the client in a meaningful way. Under cur-rent Rule 3-500 of the Rules of ProfessionalConduct (soon to be renumbered Rule 1.4 in apending revision), a lawyer must reasonablycommunicate with the client about significantdevelopments in the representation.

Scope of WorkThe starting point for managing expecta-

tions in order to avoid claims is to reasonablylimit the scope of the representation to thatwhich has been discussed and agreed betweenthe attorney and client, and to be cautiousabout unwittingly expanding the scope. Whensurprises develop during legal representation,they may impact the tasks that need to be per-formed or the advice to be given. How the lawyerapproaches these issues may lead to problems inthe scope of duty.

Claims are more likely to arise when clientsand their lawyers have differing expectations

ManagingExpectations–What LawyersCan Do toAvoid Malpractice

This article first appeared in

Orange County Lawyer magazine in

October 2010, Vol. 52 No.10

© Copyright 2010 Orange County Bar Association.

The views expressed herein are those of the

author(s). They do not necessarily represent the

views of the Orange County Lawyer magazine,

the Orange County Bar Association or its staff.

All legal and other issues should be

independently researched.

render advice, including fully informing theclient as to his or her rights and available alter-natives under the circumstances. The failure todo so may violate the standard of care.Considine Co. v. Shadle, Hunt & Hagar, 187Cal.App.3d 760, 765 (1986). Certain obligationsto render advice to the client are implied in law,even though they may facially appear to be out-side the scope of the contemplated representa-tion. For example, a worker’s compensationattorney has been held to have a duty of care toadvise the client of the right to bring third partyinjury claims even though the agreed scope ofrepresentation was to just handle the worker’scomp case. Nichols v. Keller, supra, 15Cal.App.4th 1672, 1686-87. Similarly, an attor-ney was held to have a duty to advise that theclient’s spouse might have a loss of consortiumclaim, even though the attorney did not repre-sent the spouse. Meighan v. Shore, 34Cal.App.4th 1025, 1034-41 (1995). These casesexemplify a lawyer’s obligation to anticipateother matters collateral to the representationthat might cause harm to the client or a closelyassociated person. A lawyer has an obligation tovolunteer advice at least to the extent of inform-ing the client of the existence of such matterswhen it is reasonably foreseeable they maycause harm if not disclosed. This duty existseven where the lawyer has no obligation toactually pursue the other matters. Thus, whilecertain duties can be limited by agreement,other obligations remain a natural extension ofthe lawyer’s duty to provide advice.

Clients rely upon their lawyers to guidethem through the legal process. The relation-ship involves the highest level of trust and con-fidence. If the lawyer hasn’t been engaged for aparticular task, the client should have the sameunderstanding. The Supreme Court in Butler v.State Bar, 42 Cal.3d 323, 329 (1986) said: “Theattorney’s duty to communicate with a clientincludes the duty to communicate to personswho reasonably believe they are clients to theattorney’s knowledge at least to the extent ofadvising them that they are not clients.” Thesame is true with respect to advising the clientwhen there is a limited scope of representationas to the services that will not be provided.

Expectations Regarding Remediesand Beyond

A lawyer should also manage the client’sexpectations with respect to the potential reme-

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dies that may be available, potential recoveriesthat may be obtained, and losses that may besustained. Clients need to understand thatunless their case is settled, there will be a winnerand a loser. There are no guarantees. A clientshould be reasonably well informed of the fore-seeable range of outcomes and the risks of loss.

Clients frequently believe that getting to ajury verdict means there will be a check in thehand of the winner. Clients need to be informedabout post-judgment motions, bonds, appeals,the possibility of reversal or the inability toobtain a reversal, and about the possibility ofbankruptcy or inability to collect.

Discussions of this nature are important tomanaging the client’s expectations, and avoid-ing malpractice claims. Likewise, maintaininggood client relations through proper communi-cation is essential. This includes returning tele-phone calls, answering client questions, andinforming the client of the risks and benefits oftaking a particular course of action, includingthe relative risks and foreseeable expense of get-ting there. Every client must understand the riskof loss. The more a lawyer effectively communi-cates with a client, the better the relationshipwill be, and that goes a very long way towardavoiding malpractice claims.

______________________________Robert K. Sall practices with The Sall LawFirm, APC in Laguna Beach. He is a memberof the Orange County Bar Association’sProfessionalism and Ethics Committee, andlectures frequently on lawyer conduct, legalethics, and malpractice.

regarding the scope of work. If a lawyer representsthe client to sue an entity for causing an injury,does the scope of work include advising the clientof the tax consequences of the recovery? Is alawyer handling a matter on a contingency oblig-ated to prosecute or defend an appeal? Does rep-resenting a plaintiff in a litigation matter requirethe lawyer to also handle the claims process oradversary proceeding if the defendant later files aChapter 11 bankruptcy petition? These are areasin which a lawyer can avoid claims by ensuringthat the client understands what the lawyer willand will not do.

The attorney-client relationship is a fluidone that may change with the circumstances,potentially far beyond the initial expectations ofthe parties. Such changes may arise from animplied agreement, such as the parties’ behavior,from a person asking for and receiving legaladvice, or even the lawyer’s vague suggestion thathe or she will look into a matter. Miller v.Metzinger, 91 Cal.App.3d 31, 39-40 (1971). If thelawyer does not intend an unlimited scope ofduty, it is important to define and limit the scopeof the work to be done, which is best accom-plished at the inception of the engagement. Thelawyer should define the relationship in theretainer agreement and to take steps to make surethe client continues, throughout the relationship,to understand the reasonable limitations on whatthe lawyer has committed to do. This is essentialto managing the client’s expectations to avoidclaims.

It is permissible for a lawyer to limit thescope of the representation to a particular matter,so long as the limitation is reasonable under thecircumstances. The client may explicitly agree tosuch a limitation. Kalmus v. Kalmus, 103Cal.App.2d 405, 425-26 (1951). Such a limitationmay also arise by implication from a long courseof dealing between the attorney and client. Kane,Kane & Kritzer, Inc. v. Altagen, 107 Cal.App.3d36, 41-42 (1980). To carefully manage clientexpectations it is prudent to be explicit and tocommunicate with the client when new develop-ments impinge upon or expand the scope of rep-resentation. The lawyer should also be careful toguard against impliedly expanding the scope ofrepresentation, unless there is a mutual intent todo so. When a lawyer undertakes a task not orig-inally contemplated, it impliedly alters the scopeof duty to include those steps reasonably neces-sary to competently pursue that task.

One of the lawyer’s fundamental duties is to