"I don’t know the status of my case, and I can’t reach my attorney”—one of the most troubling statements to be made about an attorney by a client. While this is true, there are worse things that can be said; a communication issue is not only a problem itself but is usually the tip of the iceberg of a series of problems, which likely involve multiple violations of the rules of professional conduct. These problems, if left unchecked, can lead to malpractice issues and discipline.
While it seems counterintuitive to begin a discussion about communication with the bad side, it is helpful to understand what such inappropriate communication looks like, if only to identify it. Bad communication runs the gamut from no communication, to inadequate communication, to late communication. Frankly, you know it when you see it.
Bad or inadequate communication can cause distrust in the attorney-client relationship or lead to inappropriate perceptions about an attorney or case. For example, clients may not understand the strengths and weaknesses of their case or not know upcoming deadlines for actions in which they must participate. Moreover, these communication issues can result in malpractice allegations or complaints to the disciplinary authorities. As discussed below, the rules of professional conduct outline certain requirements regarding a lawyer’s obligation to communicate.
Many lawyers ask me what good communication looks like—and that question is almost impossible to answer. A better way to think about it would be that you should strive to provide the communication you (or your family) would want to receive from a lawyer. This answer is complex because it deals with what is expected by the client. Sometimes, the way you communicate (and how often) can be more relevant than what you tell the client.
For example, because I am an attorney, I may need less assistance from a fellow attorney I hire, along with fewer status updates and explanations, and what I do receive can be through simple emails. On the other hand, an unsophisticated user of legal services might need clearer explanations delivered on a more frequent basis, and those communications may need to be by telephone or U.S. mail. Additionally, those clients may also not fully understand the limitations of accessibility of an attorney and simply want additional explanations. I might go so far as to say, only partially in jest, that many unsophisticated users of legal services need to be told how legal practice in real life differs from Law & Order, Suits, or Judge Judy. On the other hand, speaking to upper-level management of a Fortune 500 company may not lend itself to over-explanation or over-communication.
Beyond client expectations of communication, we also look to the American Bar Association (ABA) Model Rules of Professional Conduct, which form the basis of the professional conduct rules in all 50 states, the District of Columbia, and the United States Patent and Trademark Office. It is safe to say that all lawyers have some familiarity with ABA Model Rule 1.4, which discusses communication with clients. Under the clear text of the rule, a lawyer must inform the client regarding matters promptly and must keep the client reasonably informed. The comments to this rule suggest that regular communication with clients will minimize requests for information from clients and that even if a lawyer cannot immediately respond to a request, it would be helpful if someone (whether the lawyer or the lawyer’s staff) could at least acknowledge receipt of the inquiry.
Beyond the communication rule, ABA Model Rule 1.1 requires lawyers to “provide competent representation to a client.” While the text of the rule does not discuss communication, the comments introduce the broad understanding of preparation involved in the representation of a client. For example, Comment [5] to ABA Model Rule 1.1 suggests that: “[t]he required attention and preparation are determined in part by what is at stake; major litigation and complex transactions ordinarily require more extensive treatment than matters of lesser complexity and consequence.” An example of the implication of Model Rule 1.1 would be not asking the client the right questions to understand the case or not seeking client direction or authorization before taking the next step, where necessary. While it is true that lawyers direct legal judgment, it is the client’s right to determine how to proceed, within the bounds of the law.
In addition, ABA Model Rule 1.3 suggests that lawyers must act with reasonable diligence and promptness with respect to a representation. While the comments to ABA Model Rule 1.3 do not explain what is reasonable, the comments explain that lawyers should not procrastinate and have an obligation to control their workload. The result is the ability to work with clients in a prompt manner. Once again, while not directly discussing communications, it is clear that diligence and promptness require not only the performance of actual legal services but also communicating with the client to provide advice or receive authority on how to proceed.
Communication with clients can take many forms. With the popularity of limited-scope representation and the shift to remote work, lawyers and clients have adapted how they communicate. However, one issue remains: documentation of communication.
I like to tell my ethics clients that if something was not documented (in writing), it did not happen. If I am defending a lawyer regarding a claim that he or she advised a client about a certain risk, I need substantial documentation to prove that point. However, many of my clients will simply tell me that they are sure they told the client. My retort is that their sureness is not a surety. I then provide them with tips to reduce a phone call to writing—either through an email or a note in the firm’s practice management software. This, of course, is in addition to traditional obligations to have an appropriate file and any obligations to the firm that employs them.
So, how should lawyers react in the age of receiving communications from clients via social media, text messaging, or other “non-traditional” means? In addition to documentation requirements (i.e., making sure these messages get saved to the client file and preserved), lawyers must also consider confidentiality of these communications. While many lawyers suggest that text messaging, for example, is inherently as secure as other forms of communication, sometimes it helps to document that you have advised the client regarding the considerations with these mediums. For example, while we all know that telephone calls can be intercepted, is the client aware that their iMessage communications with you might be visible to their family on a shared iPad? On the other hand, are you, as a lawyer, doing enough to keep your own family away from accessing your telephone? To be clear, the ethics rules do not prohibit text messaging, and sometimes it is the preferred method of communication if there are language barriers. However, thought should be given to the parameters of whom you can speak with via text, how such information will be stored (and for how long), and finally what should not be said in a text message. After all, if an attorney begins texting with a prospective client, it might be difficult to stop the rainfall of unsolicited information—even after telling that individual a conflict exists. As such, when lawyers work with less traditional means of communication, they should consider firm policies, record keeping, and documentation issues, as well as the ever-important consideration of confidentiality.
Finally, on a related note, it is most helpful to keep boundaries with clients. When you allow yourself to connect with or communicate with clients via non-traditional means, it sometimes creates unintended consequences—from availability to an invasion of personal spaces. For example, communicating with clients via social media may cause them to message you at all hours of the night (and expect a response) while also not allowing you to not respond due to the fact that they may know where you are or what you are doing, based on a picture. In addition, lawyers face risks that clients may begin posting personal and confidential information, inadvertently or otherwise.
Practice saying no. Related to the discussion on boundaries, while communication should not be difficult in most instances, managing clients and their needs is a learned technique. As such, it is important to practice saying no. Whether you are a solo practitioner declining excessive amounts of work or a young associate drowning in work, you should be mindful of your ethical obligations before taking on more than you can handle. Before client management and communications become an ethical issue for you, understand that a balanced workload will result in happier clients that you can focus on and communicate with—and leave you with a better, blemish-free reputation.
Additionally, saying no also involves setting boundaries with clients. For example, not communicating with clients on weekends or while on vacation may sound normal to some, but others think constant communication is a requirement. While such communication may be needed in some instances, most communications can wait as these patterns creep into additional weekends and vacations like a leaky faucet—and may impact a lawyer’s work-life balance and well-being.
Manage expectations. Managing client expectations at the outset of a representation can be very helpful. As such, it is important to be clear with your clients about what they should expect from you and your team in terms of the frequency and type of communications—this can be easier than playing catch-up and apologizing. In addition, your engagement letter could specify how (and how often) you will communicate. For example, the document can explain whether you agree to be contacted via phone, email, text, and social media and how often you will try to give status updates automatically.
When you do get inquiries from a client, it is helpful to have a system in place to help triage and acknowledge the question. For example, if clients want a status update but you are in trial during the week, it could be helpful for you or a member of your team to acknowledge receipt and tell them that a response is forthcoming—if only to let them know the inquiry was not forgotten.
Communicate clearly. As lawyers, we often speak in legal jargon and are circumspect. However, when speaking to clients, it is important to use simple and easy-to-understand terminology. After all, we are not using technical writing skills in client communications. This effort from the start will often eliminate the need for additional communication due to misunderstandings. Also, try to anticipate common questions. For example, when presenting a settlement offer via email to a client, don’t simply forward the offer from opposing counsel asking for a yes or no; provide some insight regarding things such as timeline and how this may impact other strategies.
Lawyers who face difficulties usually have issues with an amalgamation of the three Cs—communication, client trust accounting, and conflicts. While this article discusses the first issue (communication), lawyers should take the opportunity of this refresher to revisit their firm’s systems to ensure they are not only communicating properly, but that their conflicts and trust account systems are adequate. After a painful few years during COVID, each of us might simply need to rewind and reset, so take this opportunity to improve processes to help clients achieve better outcomes.
