10 Rules of the Road for Trial Lawyers – Protecting Clients and Preventing Legal Malpractice (Rule 3)

Rule of the Road No. 3: A trial lawyer must effectively communicate with clients.

The most important thing we can do to foster good client relations is to effectively communicate with our clients. Effective communication skills are not only an essential part of good representation, effective communication will help make the client feel well represented. Good communication skills will also reduce the risk of claims. Moreover, the ABA Model Rules of Professional Conduct require us to effectively communicate with our clients. Rule 1.4 sets out the minimum communication required of a lawyer:

RULE 1.4. COMMUNICATION

(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(e), is required by these Rules;
(2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
(5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

When you think about it, Rule 1.4 merely requires a lawyer to do what should be common sense for lawyers to do and what any one of us would want our lawyer to do. Yet, failing to communicate with the client is one of the most common failings of lawyers that result in malpractice claims or grievances.

Good communication skills include at least the following:

• Responding to telephone calls and email.

Answer your client phone calls and emails within 24 hours (2 hours is better). If you can’t respond to the client, make certain that another lawyer or staff person responds to the client. This can be as simple as having a staff person call the client, inform the client that you are unavailable, and schedule a time for you to return the call. Alternatively, this can mean having a junior lawyer or partner make the call for you. The important principal is – respond! Don’t ignore the client until you find it convenient to get back to him or her.

• Billing.

Make certain that you take some action on each client’s case once a month, even if to note that nothing significant is happening in the matter. Put a “no charge” on the client’s bill for your time monitoring. This will serve the double purpose of letting the client know you are monitoring his or her case and build goodwill by showing that you are not charging for the minimal attention.

• Detailed time entries.

If the matter is an hourly case, bill monthly and make your bills sufficiently detailed so the client knows what you are doing to advance the matter and bring it to resolution. We now recommend that you record your time in detail on contingent fee cases, because if there is a fee dispute you don’t want to be having to reconstruct your time years or months after the event.

• Provide copies.

Blind copy your client on every substantive piece of correspondence or court filing which leaves your office (we’re not talking about transmittal letters and routine certificates of service). If a client complains that you are providing too much information, take the opportunity to discuss with the client about what materials the client wishes to see and what materials the client does not want to see. However, your default position should be that the client receives a copy of whatever leaves the office.

• Put it in writing!

Put your significant advice to the client in writing. If there is a matter of significance to the representation, put it in writing – even if you discussed the matter with the client on the telephone or in person. Clients, being human, will sometimes hear one thing when you meant another or, more problematically, hear what they want to hear. Moreover, human memory is notoriously fallible, and with time’s passage can twist events or communications beyond recognition. Thus, memorialize the significant discussions or advice in a letter or memorandum or, even, an email. This will not only protect your firm if the representation doesn’t go as planned, but is more likely to flush out any misunderstandings and allow the client to re-contact you for clarification.

• Invoice litigation costs.

When advancing litigation costs, send a monthly invoice of costs to the client (with a cover letter stating that payment isn’t expected at that time), so that the client is kept aware of how much money you are expending on his or her behalf, and so the client can’t claim surprise at the total amount of costs advanced when it comes time to settle the case.

• Manage the client’s expectations.

Don’t permit a client’s expectations to become unrealistic or out of control. This means you need to realistically evaluate the client’s matter for its strengths and weaknesses and likely outcome and communicate your evaluation to the client both personally and in writing.

In sum, communicate with the client, as you would like your doctor or personal lawyer to communicate with you or your loved ones.