GPSOLO January/February 2008
Yikes! How to Deliver Bad News and Disclose Mistakes
Like most professionals, we lawyers have a difficult time accepting anything less than excellence in whatever we endeavor to do, especially concerning our professional work. We tend to think highly of ourselves, and that self-confidence has helped us get where we are and achieve all that we have accomplished professionally.
Unfortunately, this same self-confidence also makes us reluctant to deal with the fact that at some point in our careers, we will either have to deliver bad news or disclose mistakes to a client. This fact is true regardless of our practice area. A lawyer presented with this daunting task can face it with integrity and professionalism by bearing in mind the guiding principles outlined below.
Understanding Your Role
Often lawyers seem to take the client’s existence for granted. This is an error. A lawyer must understand first that the interaction between an attorney and client is a relationship. You have to work at it. Like all relationships, the attorney/client relationship must be determined and defined—ideally, at its inception. The lawyer should establish the appropriate expectations in the initial interview or after the initial assignment with the client, no matter the area of law. In all circumstances, the lawyer should make sure that the client knows there are no “guarantees” of a particular outcome. Under no circumstances should lawyers make any promises except that they will endeavor to do their best work for the client and that they will attempt to do things with the highest degree of professionalism and the highest quality possible.
At the beginning of the relationship, the lawyer should also develop proper reporting channels of communication for the client. The lawyer should endeavor to educate the client early and often concerning not only the law and the facts, but also procedures. Office procedures should be explained thoroughly and understood by all parties so that the client can fully understand the operation of the lawyer. Likewise, the lawyer should educate himself or herself about the client’s preferred methods of communication and should become familiar with any guidelines, handbooks, or regulations that the client might provide for reporting procedures. We should never forget that we are in a service profession—we are there to serve the client, not the other way around.
The most important attribute a lawyer can have is the ability to listen. There is an old saying that “God gave us two ears and one mouth for a good reason”—we should listen twice as much as we talk. However, we lawyers sometimes tend not to follow that old adage. Experience teaches that a lawyer’s ability to listen increases that lawyer’s ability to understand and be more responsive to client needs, ensuring more accurate communication and a more successful relationship with the client.
When establishing a new client relationship, lawyers also should remember not to ignore their gut instincts and intuition. If you suspect that a particular client will have unrealistic expectations, chances are he or she will. Lawyers should listen to these warning signs and act on them accordingly. If not dealt with early, they could lead to a potentially bad situation. Or a disaster.
Etiquette for Ill Tidings
In this section we will discuss the etiquette of delivering bad news and disclosing mistakes.
Delivering bad news. If you have bad news to deliver, make sure you personally are the one to do it. Under no circumstances should clients be allowed to hear bad news via the media, other lawyers, or other sources; it is your job to represent your clients and to be their agent. Do it up front. Sometimes it’s more painful for the lawyer to deliver bad news than it is for the client to hear it. The client may actually be expecting it. Regardless, always be forthright when delivering bad news.
Be aware that the form of delivering bad news is also critical. Do not deliver bad news via e-mail or voice mail. Always make the personal call or arrange for a meeting to deliver the news personally, and make sure you will not be interrupted. Verify in advance that the client will have the time to listen to the news. If not, find out when the client can have the time to meet with you, make the arrangements, and call back when you have the client’s undivided attention. Whatever you do, be very flexible so that you can be completely responsive.
When delivering bad news, always offer the client possible alternatives or options. For example, the client may have an opportunity to appeal a matter or take subsequent remedial actions. The client should believe you always have a plan. Don’t simply deliver the bad news and end the conversation without creating some optimism about going forward.
Finally, be compassionate and understanding. Make the client feel that you are on the same team. Whatever you do, resist any urge to blame the client or anyone else, even if the client withheld information or failed to provide certain documents. The way you handle this situation could be the key to keeping this client or receiving possible referrals from the client in the future.
Disclosing mistakes. Really, this is just a more acute example of delivering bad news, and the advice above applies here as well. Whenever you have to disclose mistakes, do not cover them up or deny them. Deal with mistakes up front and accept full responsibility. In instances where it is not your fault or there were insufficient client instructions, the client usually knows this. Now is not the time to point out anyone’s shortcomings or focus on them. Do not blame your staff, even if it is their mistake. Remember, they work for you, and you, the lawyer, are the one with the ultimate responsibility. Accept it. You have the law license, and it’s your name on the door.
Furthermore, do not compound the problem with deception. The initial shock of realizing a mistake can quickly lead to an attempted cover-up. Resist this impulse. Instead, deal with the mistake forthrightly and offer the client possible options. Having a game plan is critical in this situation. It demonstrates that you are adaptable when things do not turn out exactly as you expected.
You will find yourself in a much better position to deliver bad news if your relationship with the client is strong to begin with. Below are some additional rules of thumb to help you develop credibility with the client before negative situations arise.
The first principle is communication: Be responsive. Statistics from the Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois show that the number-one complaint about lawyers is that they do not return calls. With the advent of computers, BlackBerrys, e-mail, and cell phones, there is no excuse for being unresponsive to a client. Even if you can’t talk to the client at that point in time, respond in the briefest way via an agreed-upon method of communication and let the client know when you will be able to discuss the matter at length.
Lawyers should always keep their clients abreast of all pertinent factual and legal developments concerning the matter they are handling for them. For example, if you have to go to court, always have status letters prepared shortly thereafter to explain to the client what just happened there. If it’s a transaction, let the client know what stage it is in and what is to come. Many times, keeping the client abreast of all pertinent developments requires not only proper documentation, but also a discussion with the client for clarification. Actually, the flow of communication should begin with the engagement letter, which gives a clear overview of your expectations. Conversely, if the client has written expectations of outside counsel (frequently the case with business clients), get those documents so that you will know what is expected of you. As in all relationships, expectations must be properly aligned in order to ensure success.
Part of your proper documentation is efficient, effective billing practices. Many times a lawyer does a good job on a matter, but when the bill arrives, the client considers it bad news because the client is unfamiliar with the lawyer’s billing practices. This scenario should never happen, and it is up to the lawyer to alleviate any client concerns about billing.
During the process of representing the client, the lawyer should routinely analyze both the client matter and the client. We should do something that we call “maintenance checks”—akin to the routine testing you schedule for your automobile. You take it for granted that at certain intervals you must check your car’s oil and fluid levels to keep it in good running order. So why don’t you treat your clients with the same care? It is wise to schedule periodic maintenance checks to make sure that you are meeting client objectives and that the client understands that there is an open flow of communication.
Another principle that lawyers seem to forget, but which should be obvious, is to always do an excellent job. Even though this sounds like a given, most lawyers should realize that they can’t always operate at peak efficiency at all times. Nevertheless, it is our responsibility and a requirement of the high standards of our profession that we not only do a good job but the best job possible.
The Worst News
Despite all our efforts, sometimes the relationship is not salvageable and the decision is made to terminate. When this happens, attorneys should keep in mind the procedures that govern the termination of the attorney client relationship. In Illinois these rules are usually governed by Illinois Supreme Court Rule 1.16. There are also core opinions concerning these procedures. Be sure to check the applicable rules for your governing jurisdiction.
These rules and procedures mainly involve turning over files to the client and possibly the client’s new counsel and making sure that the court is properly notified. In litigation matters, you must make sure that proper notification is sent to the other side. In transactional matters, certainly there is a duty of reporting to all parties involved and a duty of turning over files in an expeditious manner so as not to hinder the proper closure of the matter. It is each lawyer’s responsibility to familiarize himself or herself with the particular rules of the jurisdiction and follow them to the letter so that the transition can be seamless. In the process of doing so, the lawyer should always be professional, even if the file is removed by the client without apparent justification. There may come a time when you may need a reference, and you do not want to be given a reference with malice. Sometimes an attorney-client relationship can be repaired later, but that will not happen if it ends with the lawyer blaming others and refusing to accept responsibility.
It is every lawyer’s desire never to deliver bad news or disclose mistakes to the client. In reality, at some point in time each and every lawyer must do so. Although we understand that each situation provides unique scenarios, following the general principles and suggestions given in this article will help you handle this difficult challenge successfully.
Maurice Grant is a founding partner with Grant Schumann, LLC, in Chicago, Illinois, where he specializes in business and commercial litigation, contracts, real estate, and employment discrimination; he may be reached at email@example.com. Eileen M. Letts is a founding partner with Greene and Letts in Chicago, Illinois, where she focuses on personal injury defense matters, contract disputes, and construction litigation claims; she may be reached at firstname.lastname@example.org.