GREAT EXPECTATIONS

Nothing earth-shattering this week.  My own duties of competence and diligence left me little time to come up with an idea for a compelling blog post.

But that reminds me: i’m often asked to discuss the “hot topics” in ethics.  The hot topic is what’s it’s always been: communication. Last week we learned that the rules consider “procrastination” to be, perhaps, the most widely resented professional shortcoming.

My experience has been different.  My experience has been that communication lies at the heart of most of the complaints and calls that I receive.

I’m not talking about “my lawyer never calls me back.”  Yes, that would be an issue, but it’s rarely what I hear.  Rather, I’m talking about situations in which it’s as if the client and the lawyer are talking about two entirely different relationships.  The reason: failure to manage client expectations.

Here’s an example: I screened an ethics complaint in September.  It was clear that neither the client nor the lawyer had a clear understanding of what the other expected out of the relationship.  The result: a total breakdown in communication, hard feelings, stress, and an ethics complaint.  I referred the complaint to an assistance panel for non-disciplinary resolution, the PRB’s version of “diversion.”

At the assistance panel meeting, things got worse.  The attorney couldn’t produce a fee agreement and couldn’t provide a clear response when the panel asked “what did this client hire you to do & what did you do?” The result: the panel referred the matter to disciplinary counsel for an investigation.

It could have been avoided.

The failure to establish and manage reasonable expectations about the representation leads to complaints. A simple example: you’d be surprised how I often I hear “I never knew I’d be billed for every email.   I wouldn’t have sent so many if I knew he was going to charge me for each reply!”

So, today’s tip is practical: set clear expectations at the outset. Talk about them with the client and confirm them in a well-drafted representation agreement.  Things to consider:

  1. Let the client communicate to you the objective of the representation.  Remember, rule 1.2(d) leaves this to the client.
  2. In return, communicate to the client a candid assessment of whether the objective is reasonable.  Your job is to provide competent and candid legal advice.  Your job is not to tell the client what you think the client wants to hear.  Appeasement and unrealistic assessments inevitably lead to results in which expectations are not met and, really, never could’ve been met.  A key point here: if the matter is going to take a long time to resolve, tell the client.  It’s not uncommon for someone to call and tell me “i never would’ve done this if I had known it was going to take so long.”
  3. Communicate to the client that Rule 1.2(d) leaves the means by which the client’s objectives will be pursued to you. (in consultation with the client and subject to all the rules, but rules 3.1 and 4.4.in particular) I’ve been contacted by clients who say “my lawyer won’t do the things I told him to do.  His job is to represent me as I say.” Communicate to the client what you will do, what you will not do, what you expect the client to do.
  4. Communicate to the client how often the client should expect to hear from you. Rule 1.4 requires you to keep a client reasonably informed about the representation.  I don’t think this requires lawyers to respond to every single client communication. Sometimes, though, a simple “there’s no change since we last spoke” might be a good idea.  Rule 1.4 also requires lawyers promptly to reply to reasonable requests for information.  Do you have a policy on responding to phone calls and emails within a certain period of time? Assuming no emergency that requires a quicker response, that’s fine.  But, communicate the policy to the client.
  5. Finally, communicate to the client the rate and basis of the fee.  Sometimes the first bill leads to “sticker shock” and, as I mentioned above, a call to me to say “she never told me she’d charge for things like that!”  Set clear expectations early.

These are just a few ideas based on the complaints and inquiries I’ve received.

For more,an oldie, but a goodie, is HERE.

Do your clients thank you?  If not, read THIS..

Finally, I don’t recommend setting expectations unreasonably low, but for some interesting tips on identifying, managing, and exceeding expectations, go HERE.

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