YourABA: June 2013
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Shades of Rashomon: 2 views of 48 hours in the life of a client

By Susan J. Michmerhuizen
ETHICSearch Counsel

Peter Geraghty
Director, ETHICSearch
ABA Center for Professional Responsibility

The following article originally appeared on the ETHICSearch website in July. It is one of a series of ETHICSearch “Tip of the Month” articles produced by ETHICSearch lawyers. A complete listing of all past Tips of the Month are available here.

A potential client hears about you from a friend and contacts you about representation in a two-part real estate transaction. You quote your competitive fee and the client agrees. The real estate offer and acceptance arrive by email from the client's realtor, with a closing date 10 days away.

From your point of view, you think of the closing date as a mere suggestion or placeholder. The other side is unlikely to be ready and you have to get a title commitment and schedule time at a title company for the closing. The client and the client's realtor both email you asking about the viability of the date, and you reply saying you are waiting on a title commitment.

The contractual date for the closing passes. Now the client is anxious to set a firm date, as he is losing money during the interval and needs the second transaction to close soon to save money going forward. He asks if the other side has delayed the closing. In this conversation you hear for the first time that the offer was accepted over other higher offers that held more contingencies, the speed of closing being the outstanding charm of the offer accepted. Obviously delay now starts to undercut that value.

You get the title commitment and contact the other side, a lawyer you are friendly with, who is likewise up to his eyeballs in work. Together you decide to close that week in your office, and it goes forward as you plan.

After the first transaction there is a second closing in another state for which you have no responsibility. The client emails you to ask how he should go about releasing sequestered funds to carry out the subsequent purchase. You tell him to contact you as the time nears with any questions. That transaction is scheduled and the client emails you and leaves voicemail messages asking for your help. You are doing four closings a day in domino style and can't reply. As the deadline nears, the client grows increasingly concerned and, copying you on all email correspondence, takes things into his own hands fully competently in your view and contacts the exchange banker and out-of-state title company asking for information. They provide it, and the transaction closes without a hitch.

No harm, no foul. The client, however, views his experience as having been hung out to dry when setting up the second half of the deal. He recalls that you told him to contact you for directions on how to proceed and felt anxious and angry when you did not answer his phone messages or emails. Then he starts to question your competence. From his perspective, his experience has not been that of someone who has had the benefit of having an expert's help to undertake a legal task; it has been more like groping in the dark and doing it himself. He wonders what else you did not do and begins to wonder why you agreed to delay the first closing. In time, he finds himself reviewing all the closing documents, suspecting oversights and looking for errors.

The duty of a lawyer to communicate with the client is enshrined in ABA Model Rule 1.4 Communication. The rule sets out the bare-bones mandate for contact with the client. Rule 1.3 Diligence states that “A lawyer shall act with reasonable diligence and promptness in representing a client.”

What these rules don't say is that the skill of a lawyer at keeping in touch with a client is an essential aspect of leaving the client with the experience of being satisfied with the representation, regardless of the outcome. Disciplinary cases that find violations of Rule 1.4 often recite horror stories — for example, lawyers who don't communicate with clients about the status of a matter for a year and a half. See in re Hallmark, 831 A2d 366 (2003), who don't return phone calls for a year; in re Turner 361 S.E. 2d 824 (Ga. 1987), who never tell the client of a scheduled hearing so that a default occurs; in re Boaten, 22 P. 2d 1034 (2001), or who don't forward settlement offers in re Elbert, 698S. 2d 949 (1997).

Lesser complaints about the duty of communication are generally brought with other violations of the rules. Neglect of a client matter coupled with a lack of honest communication about the status of the case is a frequent fact pattern.See, e.g., the following annotations to Rule 1.4 from the seventh edition of the ABA Annotated Model Rules of Professional Conduct:

In re Schoeneman, 891 A2d 279 (2006) lawyer telling client that discrimination case was “fine” when in fact it was dismissed … In re Hasty 227 P2d 967 (2010) lawyer failed to tell client that file misplaced, discovery deadlines missed and client's pleadings ordered stricken)

The key is to see it from the client's point of view. Even a positive outcome may not erase the frustration of waiting for a call or email. The client may wonder about the status of the matter and feel unsure that he has an ally in the case. Certainly there are individuals who demand too much, high-maintenance clients who insist on hand-holding. Find a middle ground, have paralegals and secretaries call clients back even just to update them on when you will be available to talk, set a policy for when you do return phone calls, and let clients know what it is. Paragraph 4 of the Comment to Model Rule 1.4 provides guidance in this area, stating as follows:

…[4] A lawyer's regular communication with clients will minimize the occasions on which a client will need to request information concerning the representation. When a client makes a reasonable request for information, however, paragraph (a)(4) requires prompt compliance with the request, or if a prompt response is not feasible, that the lawyer, or a member of the lawyer's staff, acknowledge receipt of the request and advise the client when a response may be expected. A lawyer should promptly respond to or acknowledge client communications.

For further information on Rule 1.4,see the chapter titled “Communication” (last updated in 2008) as it appears at page 31:501 of the ABA/BNA Lawyers' Manual on Professional Conduct and the annotations to Rule 1.4 as they appear in the seventh edition of the ABA Annotated Model Rules of Professional Conduct (2011).

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