Hell’s Gates — Adopt Effective Client Communication Methods to Avoid Bar Discipline

Issue Vol. 9 No. 1 January 2007 By Alan E. Brown

Alan E. Brown is an associate in the Boston office of Morrison Mahoney LLP, where he concentrates his practice in the areas of professional liability and general liability defense. Prior to joining the firm, he served for four years as an investigator in the Office of the Bar Counsel at the Massachusetts Board of Bar Overseers.

He may be reached at Morrison Mahoney LLP, 250 Summer St., Boston, MA
02210-1181. Phone: (617) 439-7581. Fax: (617) 342-4944.

At the mouth of the Kennebec River in Arrowsic, Maine, there is a section of water known as Hell’s Gates. There, strong currents draw the unsuspecting boater into a whirlpool that even an old salt would struggle to escape. Avoiding trouble means steering clear of that section of the river altogether. Here in Massachusetts, wise lawyers heed similar advice when dealing with the BBO: They do not risk crossing its path. However, many lawyers unnecessarily invite scrutiny of their work and risk discipline by failing to adopt and follow effective client communication methods.

Bar counsel’s Attorney Consumer Assistance Program (ACAP) screens all complaints made to the BBO. Since its inception, ACAP has reported that more than 25 percent of its callers raise concerns about lawyer neglect, lack of diligence and communication problems.[1] As a former bar counsel investigator responsible for mediating these attorney-client disputes, I can personally attest to the large number of BBO inquiries generated by lawyers’ lax communication. The BBO routinely hears clients say:

“I keep calling and leaving messages at the lawyer’s office and nobody calls back.”

“I think my lawyer pretends to be out when I call.”

“I have no idea what’s happening with my case and can’t get any information from my lawyer.”

“The lawyer’s secretary keeps telling me nothing has happened, but I don’t know if I believe it.”

ACAP strives to resolve minor disputes between lawyers and their clients without a formal investigation. What many lawyers do not appreciate, however, is how easily a seemingly minor attorney-client communication problem can become the gateway to a broader investigation. This investigation includes intense scrutiny of the lawyer’s work and, in some cases, discipline.

Take the client who calls ACAP because he does not know the status of his case. The client reports to the BBO that his lawyer has failed to respond to recent telephone calls and voicemails. While on its face this is nothing more than a simple communication problem, if not resolved immediately by the lawyer to the satisfaction of his client, bar counsel will advise the client to file a written complaint. A full investigation ensues. This investigation often includes a review of the entire case file by bar counsel since the allegations in the client’s complaint do not limit the scope of bar counsel’s inquiry. If client funds are involved, even remotely, a lawyer might receive requests for his IOLTA records, including the detailed check registers, client ledgers and account reconciliations required by the new version of Massachusetts Rule of Professional Conduct 1.15.

What starts out as a simple communication problem, therefore, can quickly develop into a far deeper inquiry. Every time a lawyer opens his records to bar counsel, he subjects his work to scrutiny and risks possible discipline. Of the 163 admonitions imposed by bar counsel between 2003 and 2005, 66, or 40 percent, of those cases included a violation of Mass. R. Prof. C. 1.4 (Communication).[2]

What can you do to minimize your exposure to bar discipline arising out of communication problems? First, review the applicable rule, Mass. R. Prof. C. 1.4, which states:

1.4 Communication

     (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.

This rule sets the benchmark against which all communication methods should be judged: Does it keep the client reasonably informed and facilitate the lawyer’s prompt compliance with reasonable requests for information?

Second, take a proactive approach to managing client communications. Instead of reacting to communication problems, set your clients’ communication expectations. Other industries routinely manage consumers’ expectations. Consider a bank customer: He can request his account balance by phone, complete some transactions at an ATM, or visit a branch location and speak personally with a teller. No customer shows up at a bank in the middle of the night expecting to speak with a teller. Why? Because the bank has managed the customer’s expectations about when and how communication will take place, teaching him to expect only certain information at certain times. To avoid client headaches, including weekly or daily telephone calls, letters and, most importantly, reports to the BBO, educate your clients about how communication will function in the attorney-client relationship and consistently follow a communication plan.

Third, consider the following specific tips for improving client communications:

1. Return all phone calls within 24 hours

Clients want to know that their lawyers are working diligently on their behalf. Nothing comforts clients more than to hear their lawyers’ voices on the phone. If you cannot return a call the same day, leave detailed information with your secretary or on your voicemail greeting indicating when you will be back in the office and available to take and return calls. Request that your clients leave in their voicemail messages the times when they will be available. Ask at the inception of the representation, as part of a standard intake form, the best time to reach the client, and the clients’ preferred method of communication. Note that one of the first questions bar counsel will ask an upset client is when and how often the client called the lawyer, and when the lawyer last responded to these inquiries. You want the client’s answer to be “within 24 hours of my call.”

2. Send frequent written updates

Clients ask their lawyers to handle disputes that are very often emotionally charged. As a result, many clients benefit from written assurances that their lawyers have not forgotten about them.[3] Having something in writing also means that the client has a source besides the lawyer to consult when a questions arises. While certainly this will not address all clients’ concerns, it does offer the client a second source, besides the lawyer, from which to obtain information about the case. At my firm, we strive to send something in writing to each client, even if just a quick e-mail, every 60 days.

Also provide the client with written notice of important information and developments in the case. Unlike a carpenter who can show his progress in building a home to his customer, lawyers have to exercise greater creativity in presenting case progress to clients. Clients will better appreciate the services provided if they receive regular notice of important events. Better appreciation means fewer calls to the BBO.

Note that a recent written communication from a lawyer to a client goes a long way in convincing bar counsel that the lawyer has reasonably responded to information requests, and often shifts the burden to the client to explain why this written update is insufficient.

3. Put office systems in place that foster communication

Client communication should not consist solely of firefighting. By taking control of client communication, you regain control of your practice and your time. Having systems in place, even if is just a tickler that reminds you to reach out to your client at regular intervals, cuts down on client inquiries and allows you to respond on your own schedule. Make use of technology to facilitate this process. Many lawyers who answer BBO complaints stemming from communication problems lack a client communication system in their offices.

4. Set limits on what staff can and cannot say

Many offices rely heavily on support staff to communicate with clients. This can result from the lawyer’s busy schedule or because the lawyer services a non-English speaking population and needs an assistant to translate information. While it is fine to have a secretary or paralegal communicate basic information to clients, it is not appropriate to delegate all client communications to support staff. The client hired and wants to hear from you, the lawyer. Bar discipline problems can emerge when the non-lawyer assistant evolves into a pseudo-attorney, giving legal advice. Additionally, many clients doubt information received from support staff when the lawyer seems evasive to speaking with the client. Many clients think the support staff is simply pacifying them. Take time to speak with clients before they call the BBO.

5. Create a standard letter for the “nuisance client”

We have all experienced situations where a client calls much more often than case developments occur. While it may not fully satisfy the client, it will go a long way towards satisfying the BBO if the lawyer sends a form letter to the client that very briefly (i.e., one sentence) describes the status of the case and informs the client that you will provide an update in 60 days or as appropriate. Keep this letter handy and have support staff prepare it for your signature. Documenting your prompt compliance and attempts to keep the client reasonably informed strongly evidences compliance with Mass. R. Prof. C. 1.4.

6. Bill regularly

Just like frequent written updates are critical to effective client communication, regular billing shows your clients the work you have invested on their behalf and the bill itself is a great communication tool. Regular billing also lets clients know how much money you have spent on the case in fees and expenses. Surprise bills at the end of the case often result in calls to the BBO. Combining monthly billing with a short narrative status update is a great way to efficiently manage client communication. Some firms that take cases on a contingency keep internal time records to track their own efficiency. Consider sharing these “bills” with clients so they can appreciate your efforts.

Log the date and time of every call to a client, even if you just leave a voicemail message. If no substantive conversation takes place, bill these calls as “no charge.” Aside from creating a record of your attempts to reach your clients, a useful record when facing disciplinary allegations of poor communication, clients love to see “no charge” entries on their invoices.

7.  Provide a roadmap to the case

At the inception of the representation, provide the client with a roadmap outlining major events in a typical case (e.g., answering the complaint, written discovery, depositions), along with guidelines setting out how often the client should expect to hear from you. Tell clients in this roadmap that you will provide status updates whenever a major development occurs or every 60 days. Inform clients about the time a typical case takes to reach trial. Deal with any client’s unreasonable expectations at this stage, and decline the case if you cannot come to an agreement. Better to turn down the case than take on a client who will become a communication nightmare. If you take the case, stick to the plan set out in the roadmap. Bar counsel will look favorably on any lawyer who shows such careful planning in communicating with his clients.

8. Recognize signs of a communication problem

 If you regularly receive calls from clients asking for the status of their cases, you may have a client communication problem. If you regularly speak with clients only after they have left you multiple messages, you likely have a client communication problem. If you have received calls from ACAP or have had written complaints filed against you, you definitely have a communication problem.[4] In all cases, take a serious look at the communication methods now in existence in your office and make improvements. Failure to recognize and address communication issues means you will ultimately hear from the BBO.

Do not unnecessarily invite the BBO to scrutinize your work and risk possible discipline. Adopt effective communication methods and avoid getting stuck in the legal profession’s version of Hell’s Gates.

[1] See Bar Counsel’s Report to the Supreme Judicial Court: Fiscal Year 2005, available at www.mass.gov/obcbbo; Anne Kaufman, Five Years of ACAP (November 2004), available at www.mass.gov/obcbbo.

[2] The author calculated this statistic by reviewing admonition summaries published by the BBO on its Web site. See Disciplinary Decisions Since 1999, available at www.mass.gov/obcbbo.

[3] Of course, these communications are intended to be brief status updates, not detailed analyses or opinion letters.

[4] Under no circumstances should you fail to reply to a call from ACAP within 24 hours or ask a support staff member to handle an ACAP inquiry. This only adds weight to an allegation of poor communication.