The First Decade: The Consumer Assistance Program Has Proven Itself to be a Valuable Program
by Jeannine P. Timothy
Ten years ago, the Utah State Bar initiated the Consumer Assistance Program (CAP) designed to offer assistance to consumers who have minor complaints about their attorneys. The program was spearheaded by former bar president Charlotte Miller and former Utah Supreme Court Justice Michael Zimmerman, both of whom had been introduced to the concept of an informal assistance program by the Mississippi State Bar and decided Utah needed just such an office. Not only would the program assist consumers, but it would also help attorneys resolve minor complaints with their clients. By the end of September 1997, the Utah State Bar CAP was in full swing, and newspaper articles notified the public of the new part-time office. Calls immediately started coming in, and they haven’t slacked off since. Based on the number of clients and attorneys whom CAP has assisted over the years, one can easily conclude that CAP is among the most important programs the Utah State Bar developed during the past decade.
Twofold Purpose
Although its title focuses on the “consumer,” CAP’s purpose is twofold, as the CAP attorney also strives to offer assistance to attorneys. The CAP mission statement underscores this dual objective:
The [CAP] is unique among the Utah State Bar programs in that it provides fairly quick and non-invasive assistance to both consumers and attorneys involved in minor conflict with each other. The CAP attorney, in a professional and courteous manner, provides the often necessary communication link between consumers and their counsel as consumers strive to understand the law, as it applies to their individual situation, and the procedural rules of the court, and as attorneys strive to educate their clients about the law and legal procedure.
CAP helps to save time and effort of attorneys responding to minor complaints, and it provides assistance to attorneys having difficulty with minor complaints. Ultimately, CAP helps to reduce the number of formal complaints filed against attorneys for those matters that do not rise to the level of an ethical violation or criminal action.
Informal Process
During the past ten years, the CAP attorney has opened more than 5,900 files and handled approximately 14,000 telephone calls. These numbers are amazing, and most of the consumers who have submitted “requests for assistance” to the CAP office have had fairly minor problems that have been completely resolved using CAP’s informal process.
Due to the informal nature of CAP, the CAP attorney is able to spend time with consumers discussing their legal problems and concerns. This is very different from the process that the Office of Professional Conduct (OPC) follows. Pursuant to the Rules of Lawyer Discipline and Disability, OPC can address only those problems that rise to the level of a Rule of Professional Conduct violation as part of a written statement and often times a written complaint. There are many times, however, when consumers do not want to file written complaints against their attorneys. They simply want help addressing minor problems in a quick manner. Additionally, many consumers’ problems have nothing to do with their attorneys and nothing to do with Rules of Professional Conduct violations. For example, consumers often blame their attorneys when an ex-spouse refuses to comply with the orders specified in a decree of divorce. Many consumers believe their attorneys should somehow force the opposing party to follow the court orders, and the consumers become exasperated upon learning that they must pay another retainer to have the attorney file an action against the opposing party. The CAP attorney is able to take the time necessary to explain to consumers that non-compliance with a court order is the fault of the ex-spouse, not the attorney. CAP strives to help the consumer gain perspective on his or her individual legal matter so the consumer can then make the best decision possible in dealing with the problems at hand. Through CAP, consumers gain an understanding of the legal process and what they can and cannot reasonably expect from their attorneys.
Nevertheless, if a consumer’s concern about an attorney rises to the level of an ethical complaint (i.e., a possible violation of the Rules of Professional Conduct), or if the consumer desires to file a Bar complaint, then the matter is forwarded to OPC for review. Once OPC receives a written complaint from a consumer, then CAP is no longer involved in the matter between the consumer and the atttorney. With the consumer’s consent, the CAP attorney may provide information to OPC about the interaction CAP has had with both the consumer and the attorney, but beyond that CAP has no further involvement with OPC or the attorney discipline process.
Along with educating consumers about OPC, the CAP attorney also informs consumers about other resources available to them through the Utah State Bar. On many occasions, CAP refers consumers to the Fee Dispute Resolution Committee, Legal Match, Tuesday Night Bar, Lawyers Helping Lawyers, Client Security Fund, or the Unauthorized Practice of Law.
What to do if Contacted
Attorneys are notified by letter or telephone if their clients submit a “request for assistance” and ask for help with a problem. Attorneys are urged to contact their clients and work toward resolution of the issues raised by the client. Most attorneys have responded to their clients and resolved their miscommunication or other problem. If for any reason, however, an attorney believes that he or she should not contact the client directly, then the attorney may contact the CAP attorney to discuss the pertinent issues. The CAP attorney will then prepare a letter memorializing the information gathered from both the consumer and the attorney. This affords the attorney the opportunity to express his or her point of view about the issues raised and get that information forwarded to the consumer.
Over the years there have been a few attorneys who have immediately withdrawn as counsel after they received communication from the CAP attorney about their clients’ concerns. Some attorneys have become angry with their clients for contacting CAP and have scolded them or threatened to withdraw as counsel in the matter. Attorneys are advised to remember that CAP is informal, and that the CAP attorney is willing to discuss matters with the attorneys and convey information back to the consumers. Attorneys are encouraged to address the issues presented by the consumer and work to resolve them rather than withdraw from the case or reproach the client.
If the attorney and consumer successfully address and resolve the issue or problem, then CAP need not further be involved in the matter. Each consumer is advised that, unless the consumer requests additional help from CAP, the file will be closed after 30 days. When a CAP file is closed, the contents of the file are completely destroyed.
Public Response
The public response to CAP has been very positive. Consumers often express their appreciation at being able to discuss their concerns with someone who is objective about their particular legal matter, knowledgeable about legal procedure, and available to listen. Many times consumers have stated that they received the telephone number and information about CAP from their friends, family, or acquaintances. Consumers are passing around information about CAP to others they find who need help communicating with their attorneys.
Attorney Response
Most of the attorneys contacted over the past ten years have responded favorably to the idea that the CAP attorney is available to help resolve issues that have arisen with a client. Some attorneys have admitted to putting a client’s case on the back burner because of other, more pressing matters. They recognize that attention to the case and communication with the client will prevent a bar complaint, and they are thankful for CAP’s informal process. Almost all attorneys seem to appreciate the opportunity to explain the difficult issues that have arisen with the clients who have contacted CAP. Quite a few attorneys have called CAP before their clients have called to provide the CAP attorney with information about the situation so that the CAP attorney is prepared to address the particular concerns of the clients. Those attorneys who have responded to CAP with trepidation are usually those who know they have stepped outside the bounds of ethical or professional conduct.
Memorable Cases
The following are a few of the most memorable cases the CAP attorney has handled over the years.
The Dwindling Inheritance
Consumer Brent, age 43, had concerns about his father’s divorce attorney. Some years earlier, the attorney had represented Brent’s father in his divorce from Brent’s mother. Brent had sided with his mother throughout the divorce, and he continued to live with his mother and share a close relationship with her. Now the attorney was representing Brent’s father in his divorce from his second wife, and Brent was distraught because the attorney was charging a great amount in fees and costs for what Brent considered a very simple divorce.
The CAP attorney explained to Brent that if there was a concern about attorney fees, then his father should contact either CAP or the Fee Dispute Resolution Committee. After all, it was Brent’s father whom the attorney represented. Brent responded that it was not his father who cared about the amount of the attorney fees. On the contrary, it was Brent himself who took issue with the fees charged, because the more his father paid to the attorney, the less Brent would eventually receive as his rightful inheritance. The CAP attorney calmly pointed out to Brent that he had no standing to complain about this matter.
Rifle-toting Ginny
Consumer Ginny, about age 60, could not understand why the police were upset with her and why the prosecuting attorney was filing a legal action against her. She had been protecting her property and had not really fired at anyone. She had only fired in the air when the neighbor children encroached on her land. The CAP attorney advised Ginny to retain counsel and explained that CAP has no authority to admonish the prosecutor for filing a legal action against her.
Mistaken Identity?
Consumer Betty contacted CAP after a criminal defense attorney had mailed a letter to her husband, Bill. In the letter, the attorney offered to represent Bill in his upcoming criminal court action. Betty, however, was adamant that the attorney had the wrong person, and she argued that the attorney should be reprimanded for sending the letter and upsetting her. The CAP attorney explained that because the letter was addressed to Bill, then she must discuss with Bill what action he wanted taken concerning the attorney’s letter.
Later, Bill called CAP when Betty was not around. He hesitatingly admitted that he had been charged with a DUI, but had not yet told Betty. The CAP attorney advised Bill to attend the hearing and consider being truthful with his wife.
The Next Decade
CAP is a busy program and, through its efforts to assist both consumers and attorneys, an invaluable program. All Utah attorneys are invited to contact CAP with questions or assistance with a difficult client situation, and encouraged to promptly respond when contacted about any consumer concerns.