In the second of this three-part series, this article focuses on important steps to creating and maintaining a steady and thorough line of communication when representing a client. A key thing to consider is that roughly one third of all legal malpractice claims arise out of poor attorney-client communications. Whether a seasoned attorney who might need some helpful reminders or a few new suggestions, or a new attorney trying to grapple with this difficult part of the attorney-client relationship, here are a few observations and suggestions which we hope will prove valuable to creating and maintaining a successful practice.
Set the Communication Framework and Expectations
As attorneys embark on a new representation, it is important to discuss with the client what is needed to maintain a healthy communication process. Explain how the attorney and other law firm personnel will communicate over the course of the representation, i.e. letter, email, telephone, video platforms, etc. This specifically should include who will be involved in those communications, including other law firm personnel and their respective roles. Discuss the expected frequency of communications and describe how that frequency may vary over the life of the representation as the matter ebbs and flows. Many clients have little or no appreciation of how a particular legal matter will proceed, how long such will take, and the other factors that impact timing and course – so take time to outline all of this.
As important as it is to explain what the client should expect from the law firm in terms of communication, attorneys should also explain to the client what is needed in return. Specifically, obtaining multiple points of contact is vitally important, not only addresses, telephone, cell phone numbers and email addresses, but also other people’s names and contact information to help “track down” a client which might go “missing.” Maintain this contact information in the client’s file and in a separate client database for ease of quick reference. If communicating with the client via email or cell phone, set reasonable expectations up front and advise the client of boundaries, such as no emails or calls after hours, on weekends, or over holidays (of course with limitations if the representation calls for such). The lawyer may want to include in any engagement letter or fee agreement a requirement that the client must keep the lawyer informed of any change in the client’s address, phone number, email address, etc., and that failure to update any such change within a reasonable time will be considered a termination of the legal representation, if the lawyer is unable to contact the client with any of the communication information previously provided by the client.
Be Responsive and Encourage the Same
One of the principle complaints about attorneys, whether in the context of malpractice claims or as a running theme in disciplinary complaints, is the lack of responsiveness to client communications. Claims related to unreturned calls, lack of communication, or inadequate or delayed communication seem to be a consistent component of client complaints. The best way to address this is to follow a regular process of returning and responding to every client communication within a relatively short window – a day or two at the most is suggested. If possible, develop a process of blocking out time each day to return client calls or responding to client emails. Even if an attorney’s schedule is so packed that there is insufficient time to provide a substantive response to a client’s inquiry, the attorney should send a brief email or leave a short message explaining that, and offering a time frame when there is more time available for addressing the client’s question(s). If the attorney is out of the office, it is recommended that someone in the office take the time to respond to the client, even if it is only to explain the reason for delay, i.e in trial, on vacation, etc. Making this a habit will not only impress clients with the attorney’s attention to their matter, but it will also create a bond that may last years and years. Remember, clients who feel they are being ignored are more likely to be unhappy with the representation, leading to unpaid or disputed bills or a variety of other complaints. Clients who feel their attorney was attentive are more likely to pay their bill and refer new matters to the firm.
We also recommend that clients be encouraged to timely respond to law firm communications, as many legal matters are time sensitive and prompt action is often necessary to effective representation. In fact, requesting clients to respond within a certain time frame is an effective way to help clients prioritize their response.
Candid Communications and Encouraging Reasonable Expectations
The success or failure of many legal representations often depend on very candid conversations between client and counsel. Most attorneys understand this rather simplistic concept, at least when it comes to stressing to the client the need for a complete and thorough understanding of all of the relevant facts surrounding the legal matter at hand. However, it is important to remember that clients need and deserve this in return – very candid, complete communications from their attorneys. One of the issues we often struggle with when defending legal malpractice claims is a client’s claim that he/she/it was ill informed about the status of a matter, the attorney’s strategy or opinions, or the likelihood of achieving a desired outcome. This is especially true when a client’s legal matter does not turn out as the client had hoped.
A key component in the ultimate success of the attorney-client relationship is for the attorney and client to be on the same page as to what can reasonably be achieved in the particular legal matter at hand. Many clients often come to their attorney with unreasonable expectations because they are truly unfamiliar with the legal system and the practical and legal hurdles they will face. Attorneys are usually quite familiar with these challenges, but often fail to timely and candidly disclose these issues to the clients, or if disclosed, do so quite late in the representation.
One potential cause of this lack of, or delay, in giving candid assessments of a client’s legal matter is the natural human tendency to avoid giving bad news. Most people are excited to communicate positive developments, but are reluctant to deliver the opposite. This natural tendency to avoid or delay giving bad news creates a multitude of problems in an attorney-client relationship. One of the best practices to counter this natural tendency is to immediately pick up the phone and discuss with clients negative developments, avoiding any significant delay. The sooner this sort of information is disclosed to the client, the less likely the client will blame the attorney for the outcome. Importantly, clients need complete and timely information in order to make educated decisions about their legal representation; Rule 1.4 of the Rules of Professional Conduct requires this.
The earlier a client can be provided candid assessments from their attorney, including both positive and negative facts or developments, the better prepared the client will be to make important decisions about the direction of their legal matter and the options and recommendations made by counsel. If this sort of candid communication is avoided or delayed, the client will often feel unprepared, surprised, disappointed or outright angry with their attorney, giving rise to all sorts of problems.
A Comment about Legal Bills and Communication
Follow the “no surprise” rule when it comes to legal billing. The client should not open up a legal bill and be shocked and surprised by the size of the bill or what is included therein. Attorneys should make sure that the client knows what has been happening over the period covered by the bill BEFORE the bill is sent to the client. Ideally this is accomplished via regular detailed communications as things are happening. However, if the level of communication has not been at the desired level, it is best that the responsible attorney pick up the phone and call the client before the bill is sent, if for no other reason, to could give the client the courtesy of a “heads up”. The client will appreciate this effort and this will soften the blow of sending a bill for legal services that might be higher than the client would otherwise expect. Most importantly, do not let legal bills be the primary means of communicating activities and developments to the client – a recipe for unhappiness and potential disaster.
Document, Document, Document
Although seemingly unfair and unrealistic, fact finders in legal malpractice trials generally expect attorneys to document anything “important.” Consequently, many factual disputes between a former client and attorney in the context of a legal malpractice claim, if not resolved by adequate documentation, devolve into a “she said/he said” argument and are often colored by people’s selective memories. Such an argument is rarely resolved favorably for the attorney defendant.
The best method of avoiding this problem is utilizing a process to document all substantive communications in some manner and saving them to the client file. Whether that is accomplished by preparing a quick letter to the client, sending an email (then saved to the client file), or preparing a memo to the file to document an in-person meeting or oral conversation depends on the significance of the information communicated. This is particularly important when the attorney is providing advice or a recommended course of action, and frankly a must if the client decides to not follow the attorney’s advice. Following an internal, specific process to document communications with clients is the best way to insure that it is done regularly and for all clients and all matters, and should be habit forming.
In conclusion, focus on increasing the frequency and improving upon the content of client communications. Creating and maintaining a deliberate, systematic and thorough communication process will not only lessen the risk of malpractice claims or disciplinary complaints, but will also improve profitability, client satisfaction and referral possibilities.
Steve Couch, President and CEO, OBLIC
Article 1: The Value of Client Communication
Article 2: Effective Client Communication – During Representation
Article 3: Closing the Communication Loop – Ending Representation