It’s CLE season. I’ve presented a few this week and am scheduled for a bunch more between now and the reporting deadline. No matter the practice area of the target audience, nearly every presentation will include two points:
- A lawyer should communicate reasonable expectations to clients at the outset of the representation.
- A lawyer has a professional obligation to provide clients with candid legal advice, no matter how unpalatable.
With respect to the former, I’ve long sensed that the bar’s perception is that most disciplinary complaints are rooted in a lawyer’s failure to communicate with a client. That’s true, but not for the reason many seem to think. That is, in my experience, not many complaints allege “my lawyer doesn’t respond to my calls or emails.” It’s far more common for a complaint to allege that the representation did not turn out as the client expected and it’s the lawyer’s fault that it didn’t. To me, that’s a communication issue.
I know what you’re wondering: “Mike – if things don’t go as the client had hoped how is that a communication issue?”
My response: “Good question. If you failed to disabuse the client of unreasonable expectations, that’s a communication issue.”
Here’s what I mean.
Imagine that Lawyer agrees to represent Client in a claim for damages. From the outset, Lawyer is aware that Client expects to receive $100,000. Lawyer knows that, at best, the claim is worth $25,000. However, Lawyer doesn’t disabuse Client of their unreasonable expectation. Then, a few months after Lawyer somehow manages to resolve the matter for $50,000, Client files a disciplinary complaint alleging that Lawyer botched the case and cost Client $50,000.
The scenario spans practice areas.
For instance, the divorce client who unreasonably believes they’re going to receive all the marital assets. Or the criminal defendant who unreasonably believes that they’ll never set foot in jail. No matter how much their lawyer gets them in a settlement, or how little time their lawyer convinces the sentencing judge to impose, the client is not going to be happy. All because the lawyer failed to disabuse the client of unreasonable expectations.
Now, are these disciplinary violations? Maybe not. Nevertheless, it’s not fun to have a complaint filed or to be sued. Nor is it good for business to have former clients telling everyone how poorly you did. That’s why I stress the importance of setting reasonable expectations at the outset of the representation, including expectations as to:
- the result;
- how long it will take;
- how much it will cost; and,
- how often the lawyer will communicate with the client.
Which brings me to point 2: candid legal advice.
Often, setting and managing client expectations necessarily includes delivering advice that the client won’t be happy to receive. A lawyer’s job is not to tell the client what the client wants to hear. Rather, a lawyer’s duty is to provide the client with candid legal advice.
Rule 2.1 of the Vermont Rules of Professional Conduct is entitled “Advisor.” The first line is:
- “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice.”
Comment  falls under the heading “Scope of Advice.” It makes my point better than I ever have:
- “A client is entitled to straightforward advice representing the lawyer’s honest assessment. Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront. In presenting advice, a lawyer endeavors to sustain a client’s morale and may put advice in as acceptable a form as honesty permits. However, a lawyer should not be deterred from giving candid legal advice by the prospect that the advice will be unpalatable to the client.”
Also, as a reader commented in response to a similar blog that I posted last year, the failure to provide candid legal advice implicates more than Rule 2.1. It’s an integral part of the duty of competence. Further, one might argue that sugarcoating advice is misleading. Finally, if the reason you’re not delivering bad news is because of the potential blowback to the messenger, well, that might be a conflict.
In closing, consider what you’d expect from your auto mechanic, doctor, dentist, financial advisor, or anyone else to whom you turn for advice. Or from your lawyer if you ever need to hire one! You’d expect candid advice that corrects any unreasonable expectations that you might have. The advice might not be what you hoped for or wanted, but it’s the advice that you’re entitled to receive and that you require to make informed decisions about the matter at hand.
Your clients are entitled to the same.