ABA Addresses Duty to Inform Clients of Mistakes.

Two days ago, the ABA’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 481.  The opinion concludes that the rules “require a lawyer to inform a current client if the lawyer believes that he or she may have materially erred in the client’s representation.”  The ABA Journal reported the opinion.

Per the opinion, the duty to inform a current client of a material error is rooted in the duty to communicate.  Rule 1.4(b) requires a lawyer to “explain a matter to the extent reasonably necessary to permit the client to make an informed decisions regarding the representation.”

So, what’s a “material error?’

Agreeing with advisory ethics opinions issued by several state bar associations, the ABA opinion recognizes that errors occur “along a continuum.”  Some errors are so serious as to require disclosure in order for the client to decide what to do next, including whether to find a new lawyer.  Meanwhile, others “may be so minor or easily correctable with no risk of harm to the client” as not to require disclosure. Many errors fall in between and, as noted by the North Carolina State Bar, “may or may not materially prejudice the client’s interests.”

Again, what’s a “material error?”

Per the ABA Opinion, “an error is material if a disinterested lawyer would conclude that it is (a) reasonably likely to harm or prejudice a client; or (b) of such a nature that it would reasonably cause a client to consider terminating the representation even in the absence of harm or prejudice.”

If an error is material, the opinion indicates that the lawyer must promptly notify the client. The opinion suggests that some errors might be so grave as to require a lawyer to notify the client before the lawyer (a) attempts to correct the error; or (b) consults with counsel or the lawyer’s liability carrier.

Interestingly, the opinion limits the duty to disclose material errors to current clients.  The Committee concluded that, generally, the rules do not impose a duty to communicate with former clients.  As such, no “duty of disclosure exists under the Model Rules where the lawyer discovers after the termination of the attorney-client relationship that the lawyer made a material error in the former client’s representation.”

I only read the ABA opinion this morning. I’ve not yet had time to fully digest it or to think about the issues it addresses.  That being said, my gut reaction is that there are likely many scenarios in which a lawyer’s failure to disclose a material error to a former client might cause harm to that former client.

Indeed, I know that many readers ascribe to the theory that the rules are the floor, not the ceiling.  In that sense, there’s always a difference between doing something because the rules require you to and doing something because it’s the right thing to do.

 

See the source image

 

 

 

 

Client communication in a social age: it’s still important to manage expectations.

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:

  1.  failure to set a reasonable expectation as to the outcome;
  2.  failure to set a reasonable expectation as to how long it will take to reach an outcome;
  3. failure to set a reasonable expectation as to how much it will cost the client to reach an outcome; and,
  4. 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.”

Great advice.

Image result for communication

Tech Competence Isn’t Everything: Soft Skills Matter

I often blog about tech competence.

One of my earliest posts was Competence Includes Tech Competence.  A search of “tech competence” on this blog produces a lot of posts.  3 of the 4 most-read posts have tech competence tags:

Well, let me tell you something: tech competence ain’t everything.

Earlier tonight, I was checking out Above the Law (woohoo!) and stumbled across a great post from Michael McDonald: Soft Skills Still Matter for Attorneys.

As I read about the so-called “soft skills,” I was reminded of a book I read long ago: Blink, by Malcolm Gladwell.  I had a vague recollection of Gladwell writing that nice doctors are less likely to be sued for malpractice than doctors who have poor bedside manners.

So, I did a quick search.  Sure enough, I found Why doctors get sued on The Ethical Nag. (great name for a blog!)  The post references Gladwell’s Blink.

Then I found a piece by Aaron E. Carroll in the New York Times: To Be Sued Less, Doctors Should Consider Talking to Patients More.  Carroll wrote:

  • “Learning to be better communicators, and to be better at — in essence — customer service is no small task for physicians. But improving those skills might actually make a difference in whether they are sued.”

And that gets me back to another reason that soft skills still matter for attorneys, one not mentioned by Michael McDonald.  Effective communication, a soft-skill, helps minimize the chances of having a disciplinary complaint filed against you.

A week after I posted my first blog on tech competence, I posted Great Expectations.  It’s a post in which I argue that the “hot topic in legal ethics” is what it always has been and always will be: communicating clear expectations about the representation and managing those expectations throughout.

Earlier this year, I followed up with Client Communication & Cool Hand Luke. For those of you unfamiliar with the movie, I guarantee you’ve heard one of its most famous lines. Readers after my own heart will recognize the line not from the film, but as the intro to GNR’s Civil War.

Anyhow, it’s not all tech competence.  Soft skills matter.  Develop, hone, & use them.

PS: The most read post in this blog’s history?  For some crazy reason, this one.

Communication

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.