|Oregon State Bar Bulletin AUGUST/SEPTEMBER 2007|
"Silence is a text easy to misread."
—A. A. Attanasio, The Eagle and the Sword
I have often said that a lawyer’s professional responsibilities can be distilled to three very simple precepts: don’t lie, don’t steal and don’t be disloyal to your clients (avoid conflicts). My list has grown to include a fourth: Communicate with your clients!
The former Oregon Code of Professional Conduct, like the ABA Model Code on which it was based, had no affirmative duty of communication, but the obligation has been recognized throughout the history of the legal system and the profession. It derives in part from the common law duty imposed on all agents, including lawyers, and from the lawyer’s fiduciary duty of good faith.1 The ABA Model Rules of Professional Conduct promulgated in 1983 cured the perceived defect in the model code by including a specific rule requiring communication with clients. We incorporated that affirmative duty into the Oregon RPCs that became effective in January 2005. Oregon RPC 1.4 provides that:
(a) A lawyer shall keep a client reasonably
informed about the status of a matter and promptly
comply with reasonable requests for information.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.2
Even before the adoption of RPC 1.4, the Oregon Supreme Court disciplined lawyers who didn’t communicate adequately with their clients, generally concluding that the failure to communicate was neglect in violation former DR 6-101(B). In re Coyner, 342 Or 104 (2006) ("The lawyer must communicate bad news as well as good to the client and failure to do so in a timely manner is neglect of a legal matter"); In re Dugger, 299 Or 21, 29 (1985) ("From the client’s viewpoint, nonperformance by neglect, needless and unexplained delay, and especially failure to communicate or to respond to inquiries, no doubt can be as frustrating as outright prevarication or some other disciplinary violations can be, even when the neglect does not result in the ultimate loss of the client’s objective.").
Underlying RPC 1.4 is the principle that reasonable communication between lawyer and client is necessary in order for the client to participate in the representation. The case is, after all, the client’s. Nothing in RPC 1.4 suggests that a lawyer needs to provide daily updates or respond to daily requests for information. However, a lawyer must provide the client with enough information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued. What is communicated and at what intervals will depend on such things as the nature of the matter, the frequency of developments and the client’s desire to be involved in different aspects of the case. A client who has confidence that her lawyer understands and is committed to working toward her objectives and who knows she will be consulted on important issues will generally be comfortable leaving the details of the representation to the lawyer.
RPCs aside, the value of good client communication cannot be overemphasized. The ability to communicate with clients is the legal profession’s equivalent of "bedside manner." The workings of the legal system are routine and familiar to lawyers, but are largely a mystery to clients, and made more so by the special language of the law. Keeping in mind that the client is the principal and the lawyer is the agent, ensuring that clients understand the nature of their matters, what you can and cannot accomplish and how the matter will progress keeps the relationship in the right balance by assisting the client in making informed decisions. Giving clients an idea of what to expect will put them at ease and foster the development of trust. Numerous studies have shown that clients judge the quality of their lawyer less by the outcome of the matter than by the extent to which they believe the lawyer cared about their matter.
Of course, the information conveyed to clients must be relevant and helpful. Clients frequently complain about being billed for listening to their lawyer’s "war stories." If you can’t tie a particular story to some issue in the client’s case, either stay on topic or don’t charge the client for that time. At an initial interview, clients may want to know something about your background and track record, but as the case goes forward most clients have little tolerance for what they perceive is bloviating self-promotion.
Clients also complain frequently that the lawyer didn’t deliver what was promised and, not surprisingly, the client doesn’t want to pay. Assuring the client that success is guaranteed, or even suggesting that the odds of success are anything other than 50-50 is dangerous. Prudent lawyers live by the motto of "underpromise and overdeliver." It is not necessary to guarantee a result to land a client; as indicated, most clients are more interested in knowing that their lawyer will work hard on the matter than whether the lawyer can produce a particular result. If your new client is unfamiliar with the legal system, a good place to start the conversation is with an explanation of the uncertainty of the outcome and the limits of your ability to control the matter, whether it is litigation or a transaction.
Failure of communication is a significant contributing factor in most fee disputes and complaints relating to fees. The two things we hear most are "my lawyer didn’t do anything on my case" and "I had no idea the fees were so high." Both of those complaints can be avoided by communication with the client, including sending regular billing statements. An itemized statement is a simple way to provide the client with regular information about the progress of the case and the accruing costs, but it shows the client the tasks you perform that the client never sees directly, such as research, document drafting and conferences with others.
Of course, communication is a two-way process. The ability to listen and really hear is as important to effective communication as the ability to speak clearly and directly. Often what a client says he wants is really not the ultimate goal, so careful listening can help you identify the client’s real objectives. Understanding what the client wants and how the client wants to get there will also help you strategize and structure your work to be cost-effective and efficient. Good listening is crucial to a successful lawyer-client relationship.
Practicing law is tough enough without having unpleasant relationships and disputes with your own clients. Communicating effectively with clients will not only fulfill your ethical and fiduciary duties; it will engender positive relationships with clients, and satisfied clients rarely complain about their lawyers. Happy clients make for happy lawyers. Communication can get you there.
1. The Ethical Considerations that accompanied the Model Code contained an explicit duty to inform clients of relevant considerations before the client makes decisions and to inform clients of material developments in their matter. They were, however, only adopted and obligatory in a handful of jurisdictions.
2. In 2002, the ABA amended MR 1.4(a) to specify that the duty of communication also requires a lawyer to promptly inform the client of any decision or circumstance with respect to which the client’s informed consent is required; reasonably consult with the client about the means by which the client’s objectives are to be accomplished; and 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. The Oregon Supreme Court preferred the older versions of the ABA Model Rule.
ABOUT THE AUTHOR
Sylvia Stevens is general counsel for the Oregon State Bar. She can be reached at (503) 620-0222, or toll-free in Oregon at (800) 452-8260, ext. 359, or by e-mail at email@example.com
© 2007 Sylvia Stevens