Seek first to understand, then to be understood. —Stephen R. Covey
Like most things in life, lawyers’ professional relationships flourish with effective communication. Communication seems relatively simple until one considers all the moving parts. Does the lawyer really understand the client’s objectives? Has the lawyer explained the means by which the client’s objectives will be pursued during the representation in a manner understandable to the client? Is there a common language? A common culture? Is the communication occurring civilly? This article will explore two key aspects of communication: cultural competence and civility.
With respect to communications between lawyers and their clients, in 1983 the American Bar Association (ABA) Commission on Evaluation of Professional Standards (commonly known as the Kutak Commission) recommended the adoption of ABA Model Rule of Professional Conduct 1.4, codifying the importance of communication with clients so that clients know what is happening on their matters and can participate intelligently in the representation. The duty of communication under current Model Rule 1.4 includes a number of communicative components, including duties: (1) to promptly inform the client of information when the client’s informed consent is required; (2) to “reasonably consult” with the client about the representation; (3) to “keep the client reasonably informed” about the status of a matter; (4) to promptly comply with “reasonable requests for information”; and (5) to “consult with” the client on relevant limitations on the lawyer’s ability to provide legal assistance.
To ensure that the client has sufficient information to participate intelligently in the client-lawyer relationship, lawyers shall “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” Reasonably understandable client-lawyer communication is not only necessary to enable the client to make informed decisions; it is also an element of the lawyer’s obligation to provide the client with competent representation under Model Rule 1.1. The idea that communication and competent representation are entwined comes as no surprise.
Of course, lawyers must be able to communicate clearly with everyone involved in a client’s matter, whether opposing counsel, parties, judges, or witnesses. Lawyers must also remain cognizant of the impact of language on judicial outcomes. Consider that the testimony of the star witness in the George Zimmerman trial who spoke African American Vernacular English was found “not credible” by at least one juror and apparently disregarded by others in 16 hours of deliberations. Clearly, deficiencies in communication can have negative ramifications on the judicial system. In today’s world, factors such as language variations, dialect, the increasingly diverse population in the United States, and the expanding global nature of lawyers’ practices influence the communication process. Improved technology makes communication frequent between people all over the world. As a result, it is imperative that lawyers both communicate and facilitate communication across different languages and cultures.
The impact of languages on lawyer communication is further evident when looking at some statistics. Between 1990 and 2013, the population of persons in the United States having limited English proficiency grew 80 percent, from nearly 14 million to 25.1 million. In 2017 nearly 14 percent of the U.S. population (more than 44 million people) were born in another country, according to a Pew Research Center analysis of the U.S. Census Bureau’s American Community Survey. While that number may not seem particularly high, most people worldwide do not move across international borders. In all, only 3.4 percent of the world’s population lives in a country in which they were not born, according to data from the United Nations. Recently issued ABA Formal Opinion 500 gives excellent guidance on lawyers’ use of translators and interpreters to communicate effectively with clients.
The fact that lawyers now regularly communicate around the world via technology means that understanding cross-cultural communication is another key for lawyers to communicate effectively. Culture is “like the air we breathe—it is largely invisible and yet we are dependent on it for our very being.” Communication between professionals and clients across cultural differences has been the focus of studies for years in virtually all professions.
In a 2001 seminal work on these issues, Susan Bryant of the CUNY School of Law discusses the implications of cross-cultural communications on the attorney-client relationship. She states that her goal is “teaching diversity through use of a framework of cross-cultural lawyering.” “Through our invisible cultural lens,” she writes, “we judge people to be truthful, rude, intelligent or superstitious based on the attributions we make about the meaning of their behavior.” Yet, those attributions may or may not be true.
Bryant notes that the “capacity to form trusting relationships, to evaluate credibility, to develop client-centered case strategies and solutions, to gather information and to attribute the intended meaning from behavior and expressions are all affected by cultural experiences.” “Inaccurate attributions can cause lawyers to make significant errors in their representation of clients,” she writes. Mistakes can occur through a lack of awareness of cultural differences as culture plays a role in “giving meaning to behavior and words; developing values and judgments; forming relationships with others; and developing biases and stereotypes.” Mistakes can also occur based on a failure to understand the client’s reading comprehension level and the readability level of the documents a lawyer provides to the client.
Cultural competency includes concepts such as “collective and individualistic cultures; time; direct and indirect communication; social role and hierarchy; [and] insider-outsider [status].” Each of these concepts potentially impacts the ability to comprehend communication. For example, in an indirect culture, eye contact may be considered impolite, whereas in a direct culture, lack of eye contact has a different attribution. Failing to recognize the different cultural meanings of eye contact is just one example of cultural misunderstandings that can result in incorrect assumptions.
Another aspect of the framework of cultural competence includes welcoming diverse perspectives as key to effective communication. The ABA Center for Professional Responsibility’s Diversity Committee compiled a list of helpful tips to use when communicating with others. While the tips were designed for communication on committees, many of the tips for interaction are helpful in all communication settings. They include: “Show concern and empathy”; “Listen with intent to understand”; “Ask people about their background and experiences. Don’t make assumptions”; and “[C]ommit to self-study on DEI [diversity, equity, and inclusion] and cultural sensitivity.” Also, consider asking open-ended questions with follow-up questions for clarification.
Lawyers have been discussing civility, or the lack thereof, for years. In a recent conversation with the author, ABA President Deborah Enix-Ross noted that “civics, civility, and collaboration are the cornerstones of democracy,” and she stressed her concerns about the decline in civility. Other experts note that incivility often starts with words. Ambassador Deborah E. Lipstadt, a Holocaust scholar, has studied hate for many years. She recognizes that no genocide of any kind, in any place, ever began with action. It begins with words. “Expressions of a particular hatred or prejudice in any form is a threat to all those who value being a part of an inclusive, democratic, and multicultural society. When expressions for contempt for one group become normative, it is virtually inevitable that similar hate will be directed to other groups.” In the words of the Preamble to the ABA Model Rules of Professional Conduct, “A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.” Communicating with civility is part of the way to uphold the responsibility for the quality of justice.
Civility in the legal profession has been defined as “treating others—opposing counsel, the court, clients, and others—with courtesy, dignity, and kindness.” A lawyer’s reputation for civility tends to go hand in hand with a reputation for excellence. Civil behavior benefits the client, the lawyer, and the judicial system. In 2014, Jayne R. Reardon, then executive director of the Illinois Supreme Court Commission on Professionalism and a member of the ABA Standing Committee on Professionalism, wrote,
Not surprisingly, research shows that clients evaluate a lawyer who exhibits civility and professionalism as a more effective lawyer. If clients evaluate their lawyers as being effective, they stay with them; if they see their lawyers as ineffective, they will go elsewhere for legal services, particularly in a climate in which the supply of lawyers exceeds the demand for legal services. Research also shows that superior service, in which relationship abilities are central, increases client retention rates by about one-third. Effective client service and positive relationships, in turn, increase profit to the lawyers by about the same rate.
Lawyers are required to engage in the competent representation of clients. During trials, lawyers shall not “engage in conduct intended to disrupt a tribunal.” In the course of representing a client, “a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.” Civil and professional communication impacts competent representation. How many times have lawyers really obtained helpful discovery by screaming or swearing at each other the whole way through a deposition? Consider the record that results from these types of exchanges. It is typically pages of nothing. Reviewing it later is (or should be) embarrassing to both lawyers and litigants and infuriating to judges. Uncivil behavior subjects lawyers to court sanctions in public opinions or disciplinary proceedings. In addition, if lawyers are to be an example of professional behavior, it is clear that no good purpose is served by Rambo-like behavior.
Communication is vital to the lawyer’s competent representation of clients. Lawyers, further, have “a special responsibility for the quality of justice.” Communication advancing those goals serves the interests of the profession. Consider the aspects of proper communication that include cultural competence and civility. Doing so will improve your relationship with all involved in your practice. As Justice Ruth Bader Ginsburg said, “Fight for the things that you care about, but do it in a way that will lead others to join you.”
