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Beyond Right and Wrong pp 397–423Cite as

Peer Review, Client Evaluations and Law Firm Audits

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Abstract

Formal quality control measures in law firms usually assume three forms: peer review, client evaluations, and attorney and law firm assessments and audits. This chapter describes the history and present forms of peer review and explains the importance of statutory confidentiality protections for law firm peer review. It then identifies typical problems in the design, administration and analysis of client evaluations. Lastly, it describes different types of law firm assessments and audits and presents examples of statements and questions used to assess lawyers’ decision making capabilities and determine whether a law firm promotes a learning environment and a culture of safety.

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Notes

  1. 1.

    “Partner” is used for brevity and is intended to include all attorneys with an ownership interest in a law firm, whether denominated as partners or shareholders.

  2. 2.

    Davis, Anthony E. (1994). The long term implications of the kaye, scholer case for law firm management – risk management comes of age. South Texas Law Review, 35, 677, 692, quoted in Fortney, Susan, (1997), Are law firm partners islands unto themselves? An empirical study of law firm peer review and culture. Georgetown Journal of Legal Ethics, 10, 271, 292.

  3. 3.

    Morgan Lewis is one of the few firms that uses Sigma Six software in some practice areas. See Terry, Laurel S. (2008). The legal world is flat: Globalization and its effect on lawyers practicing in non-global law firms. Northwestern Journal of International Law & Business, 28, 527.

  4. 4.

    Press, Aric. (2008, December). A long time coming. The American Lawyer.

  5. 5.

    The Martindale-Hubbell peer rating is not a traditional peer review system. Attorneys’ work product and client surveys are not submitted by Martindale-Hubbell to reviewers. Its website states that “lawyers under review are sometimes asked to provide professional references to assist with the process,” a law firm generally “is given the rating of its highest rated active partner,” “Peer Review Ratings Toolkit subscribers also receive the opportunity to submit additional ratings sources to augment those solicited by Martindale-Hubbell,” “Martindale Hubbell Peer Review Ratings Specialists work closely with larger law firm clients to educate, engage and assist their lawyers in the peer review process and the marketing opportunities surrounding the Martindale-Hubbell Peer Review Ratings,” and “under no circumstances are any Martindale-Hubbell Peer Review Ratings review materials released.” Martindale.com, “Martindale-Hubbell Peer Review Ratings,” retrieved at http://www.martindale.com/xp/legal/About_Martindale/Products_and_Services/Peer_Review_Ratings/ratings.xml.

  6. 6.

    Regan, Francis, et al. Eds. (1999). The transformation of legal aid: Comparative and historical studies (p. 242). New York: Oxford University Press.

  7. 7.

    Id.

  8. 8.

    United States Bureau of the Census. (2006). Service annual survey, Table 6.1, professional, scientific, and technical services (except notaries and landscape architectural services) (NAICS 54)—estimated revenue for taxable employer firms: 1999 through 2006.

  9. 9.

    Koppel, Nathan. (2007, August 22). Lawyers gear up grand new fees. The Wall Street Journal, p. B1 (citing data from the law firm group of Citi Private Bank, a unit of Citigroup, Inc.). Curtis, Diane. (2009, January). Will a bad economy force more changes in the profession? California Bar Journal.

  10. 10.

    Cal. App. 3d 174, 180, 135 Cal. Rptr. 838 (1977).

  11. 11.

    Martyn, Susan R. (1979–1980). Informed consent in the practice of law. George Washington Law Review, 48, 307, 308.

  12. 12.

    Fortney, Susan. (1996). Are law firm partners islands unto themselves? An empirical study of law firm peer review and culture. Georgetown Journal of Legal Ethics, 10, 271, 295, fn. 133.

  13. 13.

    See Mallon, Bill. (2000). Ernest Amory Codman: The end result of a life in medicine. Philadelphia, Pennsylvania: W.B. Saunders Company.

  14. 14.

    Parsons, Donald W. (2000, November/December). Federal legislation efforts to improve patient safety. Effective Clinical Practice, 6, 309–312.

  15. 15.

    Neuhauser, D. (2002). Ernest Amory Codman M.D. Quality and Safety in Health Care, 11, 104–105.

  16. 16.

    Id.

  17. 17.

    Swensen, Stephen J., and Cortese, Denise A. (2008, January 1). Transparency and the “end result idea.” Chest, 133(1), 233–235.

  18. 18.

    Neuhauser supra note 15 at 104–105.

  19. 19.

    Gosbee, John, et al. Patient safety case conference/modified M&M – faculty development. United States Department of Veterans Affairs. Available at http://www.va.gov/ncps/curriculum/TeachingMethods/PtSafety_Case_Conference_Format/index.html

  20. 20.

    Id.

  21. 21.

    Id.

  22. 22.

    Kravet, Steven J., Howell, Eric, and Wright, Scott. (2006, November). Morbidity and mortality conference, grand rounds, and the ACGME’s core competencies. Journal of General Internal Medicine, 21(11), 1192–1194. See New Jersey Law Revision Commission. (2005, September). Final Report relating to medical peer review privilege (deciding “not to recommend the enactment of a statute protecting peer review materials”).

  23. 23.

    Id.

  24. 24.

    Sullivan, William, et al. (2007). Educating lawyers: Preparation for the profession of law (pp. 174, 189). San Francisco, California: Jossey-Bass.

  25. 25.

    See American Medical Association. (1988 & Supp. 1994). A compendium of state peer review immunity laws. Chicago, Illinois: American Medical Association. Creech, Charles D. (1988). The medical review committee privilege: A jurisdictional survey. North Carolina Law Review, 67, 179.

  26. 26.

    So. 2d 836, 839 (Ala. 2000).

  27. 27.

    Babcock v. Bridgeport Hospital, 742 A. 2d 322, 344 (Conn. 1999).

  28. 28.

    Id.

  29. 29.

    American Bar Association Standing Committee on Lawyers’ Professional Liability Seminar (1990, April 19–20). Partner peer review: An idea whose time has come, cited in Ablan, Paul M. (2002). Law firm loss prevention systems and procedures. St. Paul International Insurance Co. Ltd.

  30. 30.

    Id.

  31. 31.

    Fortney supra note 12 at 284–292.

  32. 32.

    Fortney supra note 12 at 271, 284.

  33. 33.

    Fortney supra note 12 at 271, 297.

  34. 34.

    F.R.D. 560 (E.D. Pa 1989).

  35. 35.

    WL 578989 (N.D. Cal. 2007).

  36. 36.

    Thelen Reid & Priest, LLP v. Francois Marland, 207 WL 578989, p. 8 (N.D.Cal. 2007).

  37. 37.

    Id.

  38. 38.

    Amberg, John W., and Rewinski, Jon L. (2008, March). MCLE Article: 2007 Ethics Roundup. Los Angeles Lawyer, Vol. 31, No. 1.

  39. 39.

    Fucile, Mark J. (2007, November). Inside counsel: The attorney-client privilege within law firms. For the Defense.

  40. 40.

    Hinshaw & Culbertson LLP. (2007, April 27). Northern California District Court addresses privilege and work product issues relating to law firm’s in-house communications. Lawyers for the Profession® Alert, available at http://www.hinshawlaw.com/knowledge/alert_detail.aspx?id=1162&type=5303.

  41. 41.

    VersusLaw, Inc. v. Stoel Rives LLP, 127 Wn. App. 309, 333–334, 111 P. 3d 866 (2005).

  42. 42.

    See Koen Book Distrib. v. Powell, Trachtman, Logan, Carrie, Bowman & Lombardo PC, 212 F.R.D. 283 (E.D. Pa. 2002) (attorney-client privilege inapplicable where attorneys within firm discussed and investigated client’s threatened malpractice action; firm should have withdrawn or obtained client’s consent to continued representation); In re Sunrise Sec. Litig., 139 F.R.D. 560 (E.D. Pa. 1989) (court “not willing to hold that a law firm may never make privileged communications with in-house counsel” but no privilege exists for communications that “create a conflict between the law firm’s fiduciary duties to itself and its duties to the client”) and Bank Brussels Lambert v. Credit Lyonnais (Suisse) SA, 220 F. Supp. 2d 283, (S.D.N.Y. 2002) (law firm cannot claim attorney-client privilege against own client when firm conducts internal investigation of possible malpractice liability). See also United States v. Rowe, 96 F.3d 1294 (9th Cir. 1996) (in grand jury investigation, privilege exists for attorneys acting, effectively, as in-house counsel); Hertzog, Calamari & Gleason v. Prudential Ins. Co., 850 F. Supp. 255 (S.D.N.Y. 1994) (because attorney-client privilege applies to communications between corporation and its attorneys, “a comparable attorney-client privilege” applies to a law partnership using one of its attorneys as counsel of record); Nesse v. Shaw Pittman, 202 F.R.D. 344 (D.D.C. 2001) and 206 F.R.D. 325 (D.D.C. 2002) (records of internal investigation by firm counsel privileged); Lama Holding Co. v. Shearman & Sterling, 1991, U.S. Dist. Lexis 7987 (S.D.N.Y. 1991) (claim of attorney-client privilege validly asserted against production of client records including attorney time sheets); Burns v. Hale & Dorr, LLP, No. 05-11113-NMG (D. Mass. May 14, 2007) (purposes of attorney-client privilege not served by allowing fiduciary to withhold documents prepared in anticipation of a possible lawsuit).

  43. 43.

    New York State Bar Association, Committee on Professional Ethics. (2005, October 26). Ethics Opinion 789, p. 3. See Model Rule 5.1(c), stating that a lawyer is responsible for another lawyer’s violation of the rules if he ratifies the conduct or “is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.” See also Fortney, Susan Saab. K. (1995). Am I my partner’s keeper? Peer review in law firms. University of Colorado Law Review, 66, 329, 345: “By instituting a peer review program, partners may also avoid violations of state disciplinary rules that are based on Model Rules of Professional Conduct 5.1(a) …”

  44. 44.

    New York State Bar Association, Committee on Professional Ethics. (2005, October 26). Ethics Opinion 789, p. 1.

  45. 45.

    Id. at 8.

  46. 46.

    Id. at 5. See Richmond, Douglas R. (2007-2008). Law firm partners as their brothers' keepers. Kentucky Law Journal, 96, 231. Available at SSRN: http://ssrn.com/abstract=1124127.

  47. 47.

    Board of Governors of the Oregon State Bar. (2005, August). Client property: Photocopy charges for client files, production or withholding of client files (Formal Opinion No. 2005–125).

  48. 48.

    Id.

  49. 49.

    Restatement Third, The Law Governing Lawyers, Sect. 46(2), Comment c. See also, Sect. 73, Comment c (law firm has a privilege, whether organized as a professional corporation, a partnership, a sole proprietorship or otherwise).

  50. 50.

    Chambliss, Elizabeth. (2005). The scope of in-firm privilege. Notre Dame Law Review, 80, 1721, 1723.

  51. 51.

    Id. Emphasis in original.

  52. 52.

    Id. at 1721, 1724. Emphasis in original.

  53. 53.

    Id.

  54. 54.

    Flanagan, James F. (1982). Rejecting a general privilege for self-critical analyses. George Washington Law Review, 51, 551, 562–563.

  55. 55.

    NASA. (2006, November 9). NASA aviation safety reporting system turns 30 (RELEASE: 06-345). NASA Press Release Archives.

  56. 56.

    “A report, statement, memorandum, transcript, finding, record, or working paper prepared and an opinion formulated in connection with any positive enforcement, quality review, or peer review is privileged and may not be subject to discovery, subpoena, or other means of legal compulsion for release to any person except the board and is not admissible as evidence in any judicial or administrative proceeding except for a board hearing.” Texas Civil Statutes, Title 2. Art. 41a–1. Public Accountancy Act of 1991, Section 15B(c).

  57. 57.

    See Langford, Carol. (2005). Depression, substance abuse, and intellectual property lawyers. Kansas Law Review, 53, 875, 907.

  58. 58.

    Florida Lawyers Assistance, Inc. What is the Florida lawyers’ assistance program? Available at http://www.fla-lap.org/.

  59. 59.

    ABA House of Delegates. (2008, February). Proposed model rule on conditional admission to practice law (08M112).

  60. 60.

    Reverby, S. (1981). Stealing the golden eggs: Ernest armory codman and the science and management of medicine. Bulletin of the History of Medicine, 55, 156. Cited in Dans, Peter E., (1993, April). Clinical peer review: Burnishing a tarnished icon, Annals of Internal Medicine, 118(7), 566–568.

  61. 61.

    See Martyn, Susan. (1989). Peer review and quality assurance for lawyers. University of Toledo Law Review, 20, 295, 318–322. See also Connecticut Rules of Professional Conduct, Comments to Rule 1.1: “If a system of peer review has been established, the lawyer should consider making use of it in appropriate circumstances.”

  62. 62.

    Corbus, F. (2004, November). Professional interactions: implementing the internal peer review. Maricopa County Medical Society Round-Up, 50(11), 17–21.

  63. 63.

    Id.

  64. 64.

    Heinz, Francesca. (2008, December). How full? The American Lawyer, p. 93.

  65. 65.

    Krufka, Marci M. (2005, June). Client surveys can demonstrate your law department’s value. Report to Legal Management.

  66. 66.

    For a broad study of organizational evaluation see Russ-Eft, Darlene, and Preskill, Hallie. (2001). Evaluation in organizations: a systematic approach to enhancing learning, performance, and change. New York: Basic Books.

  67. 67.

    See Flannery, William J. (1990, June 11). Opinion surveys can help firms keep clients happy. Texas Lawyer.

  68. 68.

    Schneider, Harry H. (1987, August). The client audit: One approach to partner peer review. Lawyers’ Liability Review.

  69. 69.

    Doyle, James K. “Handbook for IQP [Interactive Qualifying Project] Advisors and Students,” prepared for the Interdisciplinary and Global Studies Division, Worcester Polytechnic Institute, Worcester, MA.

  70. 70.

    Krufka, Marci M. (2005, June). Client surveys can demonstrate your law department’s value. Report to Legal Management.

  71. 71.

    Borgal, Marcie L. The power of one. The Complete Lawyer, Vol. 1, No. 5.

  72. 72.

    Mark Rose, Director of Research, Pearson (email to author, February 5, 2009).

  73. 73.

    https://surveys.hbs.edu/perseus/se.ashx?s=381B5FE533C282FF.

  74. 74.

    Garvin, David A., Edmondson, Amy C., and Gino, Francesca. (2008, March). Is yours a learning organization? Harvard Business Review, pp. 109, 110.

  75. 75.

    Weick, Karl, and Sutcliffe, Kathleen. (2001). Managing the unexpected (pp. 95, 106, 108, 110). San Francisco, California: Jossey-Bass.

  76. 76.

    Dizik, Alina. (2009, May 20). Law firms embrace business school 101. The Wall Street Journal, p. B5.

  77. 77.

    Id.

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    Randall Kiser

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Kiser, R. (2010). Peer Review, Client Evaluations and Law Firm Audits. In: Beyond Right and Wrong. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-03814-3_11

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