Not too long ago, malpractice carriers used to warn lawyers that clients’ biggest complaint about their attorneys (and the biggest reason that they ended up suing their attorneys for malpractice) was lack of communication. The lack of communication manifested itself in a variety of ways, including, without limitation, failure of the attorney to respond to the client in a timely manner (or at all), failure of the attorney to keep the client advised of the status of the case, and failure of the attorney to ensure that the client reasonably knew what to expect going forward.
While we have not received a communication of that nature from our errors and omissions insurance carriers in recent years, we do not believe that the situation has drastically improved (if it has improved at all). Accordingly, in the interests of better attorney-client communications, better service for clients, better interactions between attorneys and clients, and, hopefully, fewer malpractice suits, we have chosen to reexamine this common warning from insurance carriers and update it for the contemporary law firm.
Back in the day, the rule we followed was to send the client a letter whenever anything significant happened in the case. Yes, in those days, we actually had to send letters by snail mail because nobody had invented email or text messaging yet. In retrospect, we had a decent idea but still did not get it right. Clients need to know what is happening in their cases. Attorneys need to manage clients’ expectations.
We propose that you adopt the following procedures in your practice:
Tip 1. Set Your Client’s Expectations
When you first meet a client and take on a case, try to ensure that your client has reasonable expectations about the outcome of the case. You will do that at the time you meet with the client to talk about the case. Do not promise or even suggest as probable an outcome that you will not likely have the ability to deliver. Building or allowing such false expectations may induce a client to sign with your firm, but it will likely leave you with a disappointed and unhappy client at the end of the case.
Tip 2. Don’t Trust Your Client’s Memory
If you have discussed weaknesses in your client’s case during the intake process (as we believe you should) or later as you discover them (as we believe you must), confirm that discussion either as a part of the representation agreement or in a separate letter (email) or both.
Tip 3. Update Your Client
Don’t limit yourself to updating the client when a significant development occurs. By all means, update when that happens, but make it a practice to regularly contact each client to report the status of the case, what work you are doing, and what the client should expect next. Yes, we know that your bill tells the client what work you have done, but we think you can do a better job in a narrative. We recommend that you prepare and deliver the updates in writing and that you provide them at least once every 60 days. Use the updates to help educate your clients as to legal processes and the manner in which the system operates, as well as the specifics of their matter.
Tip 4. Document Settlement Discussions
Keep your client informed in writing of all settlement offers and proposals, as well as responses and counteroffers. Also, document in writing your client’s reactions to offers and counteroffers and any instructions provided by your client as to how to proceed with respect to the case.
Tip 5. Take Some Classes in Mediation
Learning dispute resolution (especially mediation) techniques may facilitate avoiding an unpleasant confrontation with a disgruntled client. It may also make you more effective in the process of mediation and arbitration of disputes when representing your clients. Additionally, if you get good at it, you may end up with a viable side hustle for your retirement years.
The better job you do educating your client and keeping your client informed, the less likely you will find yourself on the wrong end of a suit filed by a disgruntled client. And the better the job you do documenting your updates to the client, the greater the likelihood that you prevail should you find yourself in such a situation.
Effective client communication is not only essential for providing high-quality legal services but also helps you build a positive reputation and a loyal client base. We believe that attorneys who establish strong communication with their clients will more likely have successful practices.
Published in GPSolo eReport, Volume 13, Number 3, October 2023. © 2023 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association or the Solo, Small Firm and General Practice Division.