By Dustin Duke
I was recently reading an out of state ethics opinion where the lawyer involved was facing disbarment. The crux of the opinion, and the source of the lawyer’s proverbial hot water, was that he had failed to adequately involve his clients in their case. He was accused of failing to include them in settlement talks and failing to provide them with notice of the settlement agreement until it had already been entered by the court. He now faces the very real possibility of losing his law license, not to mention having to pay back millions of dollars in attorney’s fees.
Of course most lawyers would never dream of settling a client’s case without first discussing the settlement offer with the client. We do, however, sometimes forget to involve clients in their cases as fully as possible. Lack of lawyer attentiveness to client needs can range from not promptly returning a client’s call, to failing to keep a client informed of the status of his or her case, to not fully explaining the legal process or potential legal outcomes of an issue.
We, as lawyers, must remember that, although we know exactly what is happening and what to expect next during the legal process, most clients do not. What may seem a simple or routine legal matter to us, can appear very complex to a client (and will most definitely be unique to him or her). A lawyer does best to remember that, to a client walking through the door, there is no such thing as a simple or routine matter. She sees only a legal problem, her legal problem, and she wants you to solve it – but she wants more than that too. She also wants to understand her legal problem and wants to know how you are working to solve it. She wants, and expects, a lawyer who will communicate with her.
For guidance on what is expected of an attorney when it comes to client communication, one can look to Rule 1.4 of the Arkansas Rules of Professional Conduct. Rule 1.4 requires all lawyers to: (1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent is required; (2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished; (3) keep the client reasonably informed about the status of their his or her legal matter; (4) promptly comply with reasonable requests for information; and (5) explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
The following are simple steps that every lawyer can take to satisfy the Arkansas Rules of Professional Conduct when it comes to communicating with clients. By taking these steps, lawyers can also help to ensure that clients understand the legal system and appreciate the work that goes into a legal matter. These steps may also help avoid a malpractice lawsuit down the line, or a client complaint to the Committee on Professional Conduct.
Return Phone Calls. One of the top complaints by clients about their lawyers is that lawyers do not return phone calls or keep them updated on the progress of their case. In the busy day-to-day activities of a law office, client calls can sometimes get lost. They stack up in voicemails, on sticky notes, or computer call logs. Most lawyers legitimately plan on getting back with clients in a timely manner, but fail to because they get caught up in other things – filing deadlines, trial preparation, legal research, drafting pleadings, etc. The best way to ensure that calls are returned on time is for the lawyer to develop a routine: block out time each day to check phone messages and return calls. If you cannot get back to a client the same day you receive a call, seek another solution. Have a member of your staff or another lawyer in your firm call the client back in order to acknowledge her call and let her know when you will be getting back to her. Also, if you cannot return a call right away, consider utilizing technology such as email or smart phones to communicate with clients. Be mindful of confidentiality, however, and ensure that you are sending information, with the client’s authorization, to a secure address to which only the client has access.
Say It In Writing. Lawyers should also send out periodic letters keeping clients updated on the status of their case. Not only will a letter keep a client informed of her legal matter, it is likely to avoid unnecessary and time consuming client phone calls (which often occur because clients want to know the status of their cases). A letter should always be mailed with copies of pleadings that are filed or received on behalf of clients. Letters should also be sent when something new develops in a client’s case. If nothing has happened in your client’s case for awhile, the first thing to do is ask yourself, “why not?” Is there something that you, as the lawyer, could be doing to expedite the legal process and move the client’s case along? If not, and there is a legitimate lull in the case, send an update letter to the client on at least a monthly basis as a reassurance that you have not forgotten about her and her legal problem. The letter can be very short, but it is guaranteed to garner attention and appreciation from your client.
Explain the Law and Legal Process. Clients come to us seeking information and assurance. Our job is to explain the law and how it will be applied to a client and his or her unique legal problem. Lawyers need to explain the legal process and let clients know the different possible outcomes of their cases. Lawyers should remember that clients are unfamiliar with the judicial system. Clients are also likely to be extremely anxious or upset regarding the legal matters they are coming to us to handle. This often means that what we tell clients in meetings is soon forgotten or may be misconstrued.
To avoid confusion by the client pertaining to what you went over, either over the phone or in a face-to-face meeting, it is beneficial to follow-up the verbal communication with a letter stating what you discussed, and explaining the law in easy-to-follow laymen’s terms. You should also explain to the client how the legal system will work in her particular matter. Tell her when and why documents will need to be signed, when court appearances may be necessary, and what to expect if she does go to court. Let the client know the possible outcomes of her legal problem. This allows her to be more involved in the handling of her case, and may lessen the surprise if she receives an unfavorable legal decision. It may also be helpful to develop written legal materials, such as fact-sheets and brochures, for common client questions or legal problems.
We, as lawyers, sometimes tend to forget that, although our client’s case may be just one of many (sometimes many, many) legal matters we are currently handling, it is often a life-altering event for the client. The client, who often has no idea how the legal system works, is dependent on the attorney for current case information, an explanation of the law, and a fair assessment of her case. A lawyer’s failure to effectively communicate with her client can greatly increase a client’s fears and frustrations. It adds to a client’s skepticism and gives lawyers a bad reputation. In order to ensure a client’s trust in both the lawyer and legal system, and to meet our ethical obligations, lawyers can and should follow the aforementioned simple steps to adequately inform and involve clients in their legal matters.
 Kentucky Bar Ass’n v. Chesley, KBA FILE 13785 (2011)