I’ve worked in the Professional Responsibility Program since 1998. I’ve reviewed approximately 4,000 disciplinary complaints.
There’s a common misconception that most complaints are rooted in “my lawyer doesn’t return my calls or e-mails.” Sure, we get some of those.
It’s more common, however, to receive complaints whose genesis is a lawyer’s failure to set reasonable expectations at the outset of the professional relationship. The failure can take many forms, but four types arise more often than others:
- failure to set a reasonable expectation as to the outcome;
- failure to set a reasonable expectation as to how long it will take to reach an outcome;
- failure to set a reasonable expectation as to how much it will cost the client to reach an outcome; and,
- failure to set a reasonable expectation as to how often the lawyer will communicate with the client.
When expectations aren’t met, clients complain. A complaint does not mean that a lawyer violated the rules. Still, it’s good to avoid complaints. One way to avoid complaints is to set & manage expectations.
I’ve blogged often on this topic:
The lesson I’ve tried to impart is no different in the digital age.
Last week, I spoke at a CLE for new attorneys. I asked how many communicate via text with clients. Many hands went up.
That’s fine. Texting with clients is perfectly okay. But here’s what I told the lawyers at the CLE: be careful. Texting makes you incredibly available. Before you agree to text with a client, consider how available you want to make yourself.
Which brings me to a recent post on the fantastic blog Associates Mind.
Keith Lee runs the blog. A few days ago, Keith posted How Do Lawyers Want To Communicate With Their Clients? In the post, Keith referred to a debate that emerged on another of his sites, LawyerSmack.
The debate? How do lawyers prefer to communicate with their clients? Keith tweeted the results:
- E-mail 62%
- phone 26%
- Text/SMS Messaging 5%
- Indifferent: 7%
Again, the blog, which includes the results, is here.
I like what Keith wrote about lawyers who text their clients. He started with:
- “Most lawyers were really down on texting. But many consumer-facing lawyers (particularly PI) were in favor of it. Which is unsurprising. It might seem odd to older folks but I have a newsflash for you: email is the medium of business and olds.”
Then, he pointed out:
- “Younger people don’t rely on email that much. They prefer texting or messaging apps for communication. Which is undoubtedly why Consumer facing lawyers that cater to this demographic were in favor of texting with their clients.”
Keith went on to list the advantages that texting provides, but also noted something similar to what I mentioned during last week’s CLE for new lawyers:
- “But texting also has the downside of folks thinking you’re constantly available. I have friends who are divorce lawyers who will never text with their clients, even if the clients want to. Why? They used to text with their clients. But after repeatedly getting texts at 2am on a Saturday inquiring about the status of their divorce, they switched back to phone calls.”
He’s right. Whether in our work or personal lives, when we text, we’re constantly available. So, think about that before agreeing to text with a client. The rules require you to provide a client with competent & diligent representation, to respond to reasonable requests for information, and to keep a client reasonably informed about the status of a matter. The rules do not require you to be available 24/7.
(Of course, as Keith points out, communicating by text is almost the norm. So, there might be business reasons for a lawyer to decide to text with a client.)
Finally, I’d caution against deciding to text a client for no other reason than it’s easier than having to talk to the client on the phone. Why?
There’s a regular reader of this blog who is also a frequent member of the #fiveforfriday Honor Roll. She’s exceedingly adept at texting me with what appears to be a legit question, only to call within a nanosecond of my reply. In other words, her texts are but a pretext to ascertain whether my phone is in my hand, leaving me no choice but to answer.
Back to Keith’s blog – here’s the next to the last paragraph:
- “What really matters is regular communication with clients. Clients frequently mistake lack of news about their case as indifference or neglect. Poor attorney-client communications is the most frequent complaint Bar Grievance boards receive.”
And there’s the last:
- “Having a plan, managing client expectations, and delivering on your communications will satisfy clients and make them feel like you are on top of their case.”