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Talk to Me: Rule 1.4 and Client Communication

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by Nathan Morris

on 26 August, 2016

Are you doing enough to communicate with your clients?

A couple months ago, the New York Times told the sad and seedy story of Stuart A. Schlesinger, an esteemed personal injury lawyer in Manhattan:

“Mr. Schlesinger, 76, [was] arrested on a fraud charge in one of the more brazen schemes in the annals of New York law: He settled lawsuits on behalf of clients, sometimes for $1 million or more, and then simply kept much of the money for himself.”

The Times described how gutsy old Schlesinger would put off plaintiff’s demands with a litany of excuses, asserting the firm was just short-staffed or their phones and computer system were on the outs.

And while all this was happening, Schlesinger was considered by his colleagues to be an incredibly accomplished attorney. Not only was he renowned for getting good settlements from insurance companies, he also taught as adjunct professor at New York Law School and wrote columns for The New York Law Journal.

Now Schlesinger’s claim to fame is getting barred from practicing law, being arrested by the feds, and pleading guilty to stealing around $5 million dollars from his clients. He could be sentenced to up to 20 years in jail — effectively a life sentence for him.

The brazen robber-lawyer Schlesinger is an extreme case of bad behavior. But within the details of this out-and-out robbery I see patterns that too often exist within even well-meaning firms. Schlesinger perfected the strategic bottleneck of client communication, but you can see those same excuses everywhere: we don’t have enough staff members to check in regularly with clients; our technology has glitches; we’re starved for time.

Whether going AWOL on your clients is a result of deliberate fraud or honest incapacity, it’s still a mistreatment of your clients — and it can still get you into trouble.

The Communication Rule

Model Rule 1.4 sets out attorneys’ duty to talk to their clients. The exact text insists that attorneys:

(1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(e), is required by these Rules;

(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 the matter;

(4) promptly comply with reasonable requests for information; and

(5) 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 rule further asserts that lawyers need to explain all these matters well enough for a client to make informed decisions.

Nowhere in the rule does it caveat “unless you’re short on time,” or “unless you’ve got crappy computer program that leaves you confused about whether or not you actually sent that email.” Breaking Rule 1.4 is bad enough on its own — but it’s also a kind of gate-way violation that opens a path to all kinds of additional rule-breaking, as the Schlesinger case shows.

How can you keep your clients informed and your right to practice secure?

Here are our 7 tips for good client communication:

1. Consider the journey, not just the destination.

Lawyer development guru Marcia Pennington Shannon notes that most lawyers think of success in terms of a case’s outcome. Did we get them to settle? For how much?

Clients care about these questions as well, but Shannon notes they’re more likely to be concerned as well with the process of their case. How did this attorney treat me while negotiating this settlement? Did I feel respected, informed, empowered?

You’re the expert here, likely you have extensive experience with cases like this one, and you feel like you know much better than you client what should be done. But this doesn’t mean you get to dictate solutions to your client. Instead, include him or her in your decision-making process.

Maybe you’re like Stuart Schlesinger in terms of being a real wiz during those settlement negotiations. But as his case so clearly shows, that alone is not enough to build client satisfaction. Even if you win and pay up promptly, you might be surprised to learn how displeased your clients can be if you didn’t communicate clearly and respectfully with them along the journey.

2. Clear the Obstacles.

What’s getting in the way? Are you understaffed? Are you subject to constant interruptions or expectations to ‘multi-task’ that obliterate your focus? Is the technology you’re using outdated or non-intuitive? Or is it just a problem of team members forgetting to tell you relevant case information?

Good communication isn’t just about skill — it’s about having the right environment. While you’re working on your own awareness and communication abilities, there are likely ways you can tweak your surroundings to clear out obstacles and challenges in talking to your clients.

3. Listen Up.

The best way to say the right things is to spend some time not saying anything. Actively listen to your client to ensure that you understand their concerns. Each client is more than just a case summary: get to know them a little better — even if what you learn isn’t directly relevant to arguing their case. This is a deeply human condition: the best way to facilitate good communication is simply to relate to each other.

4. Lay off the legalese.

We’ve written before how it’s bad in a brief, but legalese can also wreck your client communication. Perhaps some lawyers feel the big words give them an extra boost of authority (Modest Mouse sings: “Well, I’ll go to college and I’ll learn some big words / and I’ll talk real loud, goddamn right I’ll be heard. / You’ll remember the guy that said all those big words he must’ve learned in college”). More likely, though, it’s just an unthinking habit, forged in law school and honed in the courts.

When you’ve mastered a technical language (a.k.a. jargon), speaking plainly with others requires effort. It’s not a skill we were taught in law school. I find my best instructor is the facial expressions of my clients: a look of sudden confusion pushes me to back-track, find the offending phrase, and try again in lay terms.

5. Use Client-friendly Tech.

Does your client like to text? Email? Speak directly to you on the phone? Ask them at the outset what kind of communication works best for them, and respect their preferences. Make sure your case management software can meet their needs — like with Filevine’s text-to-case-file feature, which documents text messages directly within the case file, so nothing falls through the cracks.

6. Develop a Routine.

Usually attorneys wait until there’s some new development or decision to be made before they contact a client. But cases can move slowly, and when there’s a long lull between messages, clients are likely to feel that creeping anxiety of abandonment. Even if you don’t have anything new to say, checking in regularly with your client will keep them more calm and confident of your work.

The best way to ensure this practice is to establish a routine, checking in with each client once a month, even if it’s just a text message letting them know that you’re still waiting for the next step.

7. Master the Delicate Art of Breaking Bad News.

You’re not going to win every case, and many a final settlement offer will be piddlingly small. Know how to break bad news.

This is particularly true when the bad news is clearly your fault — like when you’ve missed an important deadline. As painful or awkward as it might be, forge onward and don’t delay in outing your mistake.

In her book Client Science: Advice for Lawyers on Counseling Clients through Bad News and Other Legal Realities, Marjorie Corman Aaron dives into the psychology of the skillful bad-news-bearer. Her advice includes these two counter-intuitive but powerful pieces:

  • Be direct and accurate when breaking bad news, instead of trying to ‘soften the blow.’ You don’t want to be blunt and uncaring with your opening words, but allude to it up front and with sensitivity.
  • When your client is swallowing the news, don’t add a lawyerly chaser. Many attorneys have an impulse to rush in with complex explanations of how this happened, but most clients will be in an “amygdala-heightened state” and be unable to digest your complex ideas. Instead, give your client space, time, and empathy.

In some ways, these rules hold true for more than just bad news. Attorney Betty Adams notes “a happy client is often an oxymoron.” People typically don’t hire a lawyer for happy reasons. The emotions of fear, anger, resentment are all likely to crop up in any case, and your work requires a careful and nuanced response to them.