GPSOLO January/February 2008
Malpractice: What We Have Here Is a Failure to Communicate
That famous line from the movie Cool Hand Luke aptly describes the issue that underlies a large percentage of the malpractice claims asserted against lawyers: A failure to communicate. In fact, nearly 17 percent of clients asserting claims against lawyers insured by Minnesota Lawyers Mutual indicate that the lawyer’s failure to provide sufficient information led to the claim. The 2000-2003 Profile of Legal Malpractice Claims published by the ABA Standing Committee on Lawyers’ Professional Liability indicates that 5.75 percent of the claims in their sample cited an alleged failure to obtain client consent or inform the client.
Failing to properly communicate with clients will not only land a lawyer in malpractice trouble, it is also an ethical violation. ABA Model Rule 1.4 Communication states that a lawyer “shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation” and shall
- promptly inform the client of any decision or circumstance with respect to the client’s informed consent, as defined in Rule 1.0(e) . . . ;
- reasonably consult with the client about the means by which the client’s objectives are to be accomplished;
- keep the client reasonably informed about the status of the matter;
- promptly comply with reasonable requests for information; and
- consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.
As stated above, a frequently cited error leading to malpractice claims and ethical complaints is a failure to provide the client with sufficient information. Rule 1.4 makes it clear that a lawyer has a duty to keep clients reasonably informed about the status of their matter, and that a lawyer must comply promptly with requests for information and clearly explain matters to the client so that the client can make informed decisions about his or her case.
In some situations, it is clear how and what to properly communicate with the client. For example, offers of settlement must be discussed thoroughly and promptly. Other situations are not quite as clear. A lawyer cannot always be expected to describe in detail trial strategy or settlement negotiations, but general strategy and prospects of success should be explained to the client.
Keeping the client well informed means communicating with the client whenever there is activity on the client’s case. It also means contacting the client regularly when the case is inactive, if only to let the client know the case is still being attended to by the lawyer.
Attorneys should communicate with their clients in at least the following ways:
- Copy all letters to the client. By sending clients copies of all correspondence that pertains to their case, clients can be satisfied that their lawyer is attending to their case. This procedure also eliminates possible future questions as to whether or not the client was informed of crucial case activity.
- Contact the client at least once every 30 days. If you cannot make the contact, staff should be trained to do so. If a telephone call cannot be made, use e-mail or regular mail. Make certain telephone calls are well documented in the file. If you do not have time for this procedure and do not have staff to make the contacts, it is a sign you have too many cases, and the risk of a malpractice claim or ethical complaint greatly increases.
- Return all telephone calls and respond to all e-mail from the client. A simple breakdown in communications as the result of a lost or forgotten e-mail or an unreturned telephone call can be the beginning of irreparable loss of client trust. Keep all telephone call slips and all e-mails in the client file. This documentation will support your recollection of the communication and show that you properly provided legal advice.
- Take detailed notes of all communications with the client. Nothing is more valuable to the defense of a legal malpractice action or an ethical complaint than the file notes that describe all communication with the client.
It is important to remember that clients must be treated the way they want to be treated. Do not expect the client to learn “legalese.” Instead, the lawyer must learn “client speak.” Ensure during your communications that clients understand exactly what you are communicating to them. Often, clients will acknowledge remarks with a nod, even though they haven’t the slightest idea what you are saying. If you have any doubt whether the client understands your advice, ask.
Pleasing every client is most likely not possible. But by following the above recommendations, the risks of becoming the subject of a malpractice claim or ethical complaint diminish significantly. Maintaining strong professional communication skills is an integral part of being a successful lawyer.
Timothy J. Gephart is vice president of claims at Minnesota Lawyers Mutual in Minneapolis. He may be reached at firstname.lastname@example.org.