It is axiomatic that your clients do not know or understand what you are doing for them unless you regularly and clearly communicate your efforts and progress. Similarly, it is likely that your supervising attorneys do not know how you are progressing on a lengthy assignment unless you tell them. Whatever the lawyer's role, part of your job is to communicate what you are doing and what you plan to do to achieve the objective the client seeks.
Lawyers must be alert to inform their clients of not only what they determine the client "needs to know," but also what the client has asked to know or has an interest in. The manner and frequency with which a client expects to be kept informed varies from client to client and from matter to matter. The engagement process and engagement letter should guide the lawyer in communicating effectively with the client. A client's expectations turn on the relative importance he or she attaches to a matter and that client's operating style. Some clients want a sense of control over what is going on and expect to be called frequently and to receive all correspondence. Some expect the lawyer to contact them only when a business decision needs to be made or an important development occurs, and prefer to receive most periodic reports in writing. As one client said, "You're not my broker or my tax advisor — only call me if it's urgent."
In all events, the lawyer should copy the client on correspondence that enters and leaves the office, with few exceptions. (An example of an exception is a corporate general counsel who instructs the outside lawyers to only send summaries to permit efficient management of a volume of matters. Similarly, let the client know why nothing is happening when that is the case. For example, "I have not heard from the other side. It's to our advantage to sit tight right now because. . . ."
By providing the client with periodic reports, oral or written, and copies of correspondence, you:
- Demonstrate to the client that you are on top of their case.
- Provide a check to ensure you are following instructions the client gave or intended to give.
- Update the client on new developments and provide an opportunity to discuss options and reach decisions.
- Prepare the client to expect the statements for professional services.
Until a lawyer knows how frequently a particular client expects to be advised about work progress, more communication is better than less — but it is wise to ask. The attorney may determine what "regular and clear communication" means to a client by discovering how the client's business operates and how other advisors and employees report. Often, simple attention to the client's actions will also provide an indication of the frequency of communication the client expects. If, for example, a client telephones often about the status of a matter, the client may not feel sufficiently informed of progress and future steps. Not surprisingly, some clients are unhappy to learn that motions have been filed on their behalf weeks earlier.
It is advisable that the lawyer follow up important oral communications with a letter summarizing the information, presenting an analysis of the alternatives, and confirming an understanding or decision reached. Discussing the matter regularly with the client, simultaneously copying the client on correspondence and memos, and submitting status reports all prepare the client to expect a bill that conforms to billing procedures agreed upon in the engagement letter, that describes services the client can relate back to the correspondence and discussions, and that is sent monthly unless otherwise agreed.
CONSIDER:
A corporate client desires to offer a new service to its field force. The company's senior vice president of marketing engages an outside law firm to analyze licensing requirements for various levels of service in the states within the company's marketing area. The originating attorney tells the vice president he estimates the project will require one month to complete. Because of unexpected complexities and delays in communicating with state authorities, the firm does not complete and mail the report until the end of the second month. Neither the originating attorney nor the team of firm members working on the project initiates progress reports during this two-month period. The vice president calls the firm after the first month and does not receive sufficient direction to allow him to answer questions about the delay from the impatient field force. He is also unable to provide a firm implementation date for the new service.
The completed report — a tome — does not begin with or contain a deductively-structured summary. Instead, the authors assumed the readers possessed substantial knowledge of the problem and understood how to implement the firm's recommendations!
To plan and carry out a practical course of action, the vice president had to initiate several conference calls among the originating attorney and the other attorneys who conducted the research and produced this report. The vice president did not appreciate the firm's effort or delayed results.
What went wrong?
As soon as the attorneys recognized that completion would be delayed, the originating attorney should have contacted the vice president for authorization to continue on that course, or for guidance on giving priority to some parts of the project over others. When the authors sat down to draft their report, they should have considered their audience: what format for the recommendations and procedures is easiest for the client to understand, what language is used by the client, and what time constraints does the client face in reading the report and in making decisions based upon its content?
In discussing a planned course of action, the lawyer should let the client know what to expect. Procedures that are routine to the lawyer may confuse the client, absent explanation. Without such assistance, the client may draw negative conclusions about the lawyer's interest, efforts, or skill. For example, suppose a litigation matter has claimed a substantial amount of a lawyer's attention and the client has received a steady stream of correspondence. Upon filing the pretrial order, the judge sets the trial for eight months later. The client should be told why the activity level will decrease for a few months. Effective communication requires the lawyer to be sensitive to the client's perceptions, to confer with and educate the client about the purpose of the process and the potential benefits, and to respond to the client's concerns.
CONSIDER:
Plaintiff sues your firm's client individually for allegedly misrepresenting some financial statements in a Regulation D offering. Seeking to pin down the claimed misrepresentations, you serve interrogatories and a request for production of documents. Plaintiffs counsel, whom you have met previously in pretrial preparation and who has behaved reasonably on procedural matters, requests an extension of time to respond because the plaintiff has been out of town for two weeks. You know that the client becomes enraged when the plaintiffs name is mentioned, and would undoubtedly view a request for the time of day as unreasonable. This client may well consider an extension a material and undesirable change in the timetable, even if that extension will not affect the trial date because the docket is backlogged and a trial date has not been set. You reflect on your definition of professional courtesy and decide that you will simply tell the client and the supervising attorney of your decision to agree to an extension.
What went wrong?
You expect the client to accept your assessment — as the supervising attorney and the firm have been hired specifically for their judgment in handling litigation matters, and for their professional abilities. Nevertheless, controlling the client does not mean ignoring or overriding the client's concerns. Before agreeing to an extension, you also want to be sensitive to the client's perspective and to assure the client that you have not given away the farm. Therefore, you must take the time to educate the client about the process and to reduce the level of anxiety. Explain how granting the request for extension can help the client later. Remember that many people, including otherwise sophisticated individuals, do not understand how lawyers can fight tooth and nail in or out of court and then amicably discuss procedural issues, converse socially, go out to lunch, or — if television can be believed — join in even more intimate exchanges.
The following considerations will help you evaluate your communication efforts, whether you report your progress and the status of an assignment to the supervising attorney or directly to the client. Ask yourself whether you have given the supervising attorney or client sufficient timely information for the client to:
- Follow progress.
- Ask questions intelligently.
- Develop and maintain confidence and trust in your judgment.
- Give feedback.
- Participate in strategic decision making.
- Carry out his or her responsibilities.
- Understand the use of outside resources.
- Decide on other plans affected.
- Deal effectively with the media.
- Relate billed effort to value received.
- Understand reasons for and discuss any material change in the timetable, cost, or strategy.
- Understand the qualifications, role, and efforts of each lawyer and legal assistant involved.
See Appendix B, Communicating Effectively from the Client's Perspective. It contains a checklist to test whether you have given sufficient timely information to the supervising attorney about the progress and status of your projects.
APPLYING THIS EXPECTATION TO YOUR RESPONSIBILITIES
Supervising attorneys must keep their clients informed.
To assist them:
Evaluate your communication efforts. Have you given sufficient, timely information?
Always be accessible to your clients
A client who is worried that the lawyer will be or is insufficiently accessible often voices this concern by saying something like, "Do you have time to handle my situation?" Accessibility is in large part demonstrated to a client by the prompt return of telephone calls and by proper handling of calls when the attorney is unavailable. Prompt return of telephone calls gives the client early assurance that the matter is important to the lawyer and the firm, has priority, and is receiving thoughtful and expeditious attention. Many lawyers are deservedly criticized by former and existing clients for failing to return nonurgent phone calls within a reasonable period of time — 24 hours. The reasons given for failure to return phone calls or otherwise remain accessible to the client are limited only by the creativity of the lawyer and staff: The attorney was in trial. The attorney was at a hearing. The attorney was preparing for trial. The attorney was in the library. The attorney was preparing for/attending/
conducting depositions. The attorney stepped away from his or her desk. The attorney had left for the day. The attorney was out of the office for several days. The attorney was on vacation. The attorney was seeking clarification on the client's matter from another firm member and had not yet received it. The attorney was waiting for the project to be completed by support staff. The attorney was involved in an emergency "deal"/ "transaction emergency problem" and was unable to break free to return calls.
- The attorney had attempted to call the client back but was unsuccessful.
- The attorney did return the client's call but the client's secretary must not have delivered the message.
- The attorney did not receive the client's messages.
- The attorney was waiting for the client's secretary to call the attorney's secretary.
- The attorney was on another line.
- The computer was down.
- A lawyer's unstated but obvious reasons for failing to return calls or to be accessible to the client include:
- The attorney does not like the client.
- The attorney does not like the project that the client has assigned.
- The attorney is unsure of what advice to give the client.
- The attorney has procrastinated in preparing whatever the client is expecting and, therefore, is loath to admit lack of action.
- The attorney has made an unrealistic promise that an item would be ready and does not want to indicate to the expectant client that it was not completed or has not been started.
- The attorney has not informed the secretary or other team members where he or she has gone.
- The attorney has delegated the matter and does not know its status.
- The attorney is rude.
- The attorney is playing golf.
In many of these situations, the attorney is also making an assumption about what the call concerns — it could be an emergency, a new matter, or a referral!
Here are some suggestions to improve your accessibility:
- Develop an effective internal system with your secretary to maintain the caller's confidence that they have your ear through your secretary. Does your secretary know your schedule so that callers can be told when to expect you to return the call? Notify your secretary of incoming calls that you anticipate and give instructions for a message to the caller. Inform your secretary when you leave the office and estimate how long you expect to be out of the office. Let your secretary know where you can be reached.
- If you are going out of town, leave your secretary instructions to call those persons whom you want to inform of your absence and your return date or report status. For example, "Judy asked me to tell you she'll be back Thursday." Or ask your secretary to tell Mr. Brown that "... the contract has been signed and Miss Jones has talked with Mr. Brooks. We are proceeding on schedule as we discussed." If a legal assistant is working with you on the matter and has had contact with the client, in limited situations you may wish to instruct your secretary to ask whether the client would like to speak with the legal assistant in your absence.
- Have your secretary check off each message you receive each time you call into the office. A useful procedure is for your secretary to keep your telephone messages and notes from firm members on a sheet of paper or on a computer in the form of electronic mail instead of on individual slips. By reading over the sheet you will be brought up to date on what has hap-pened in your absence.
- Place unreturned calls at the top of your "To Do List." Clients or outside advisors should never have the feeling that their calls, alone, prompted you to work on their problems or projects. If the client has expected a response, a call from you, or a status report, the client may believe that your silence means you are not managing the matter. In this situation, if you do not have information or answers to report when the client calls, the client may conclude that the telephone call is your "late warning system" to spur you into action to handle the matter.
- If you try to return a call but cannot reach the caller, consider asking his or her secretary when it would be convenient to call again or set a telephone appointment. Conversely, you should ensure that your client is accessible by obtaining emergency telephone numbers, as appropriate.
APPLYING THIS EXPECTATION TO YOUR RESPONSIBILITIES
Set up an accessibility system: Inform your secretary of your whereabouts. Anticipate calls; brief your secretary with appropriate messages and instructions.
Return nonemergency calls within 24 hours; arrange telephone appointments.
Always respond quickly when it comes to your clients
Although lawyers may seem to be perfectionists by nature, few lawyers can afford the luxury of pursuing perfection. Indeed, in many assignments, supervising attorneys and clients do not expect every stone to be turned, and those clients are unwilling to incur the cost of delay or additional fees for exhaustive scrutiny. Clients do want a prompt response, want to know they are being actively represented, and want to be kept informed.
A client expects that its lawyers will devote attention to each of its matters within the time frame that the client perceives it should be handled, unless otherwise discussed. Lawyers often set or agree to unrealistic deadlines, setting themselves up for missed dates and setting their clients up for frustration. Frequently, a client does not have a specific deadline in mind, but thinks in terms of an acceptable range. If any deadline is offered, however, that client may seize upon it and elevate it to gospel status. If the client does not specifically ask for a deadline, the lawyer should refrain from offering any definite dates; instead, it is better to give the client a range of time to allow for flexibility in dealing with unforeseen problems. If a client requests a definite deadline, the lawyer should carefully assess available resources and the matter's requirements before making any promises.
Once established, meet all deadlines — whether imposed by the supervising attorney or by the client. If you find that it becomes impossible to comply with a deadline, however, inform the supervising attorney of the problem when it arises — before the assigned due date. Then the supervising attorney can evaluate whether to alter the course of action, confer with the client, and so forth.
CONSIDER:
A law firm delegated some of a client bank's real estate matters to a second year associate. The associate prepared the documents in draft and forwarded them to the bank for review. The bank executive expected the associate to complete the documents upon receipt of the bank's comments on the drafts. The banker then confirmed with the seller of property that the meeting to close the sale could take place as scheduled. While the associate was discussing one of the bank's comments on the drafts with the bank executive's assistant, the assistant mentioned that unanticipated problems had arisen in one of the property transactions. The associate believed that the problems the assistant had described would cause that property transaction to fall through, or at least not close as scheduled in that meeting.
The associate, running short on time remaining be-fore the banker's departure for the meeting — and otherwise feeling hopelessly pressured by competing deadlines — decided not to revise and complete those documents relating to the problem transaction, but sent a folder containing the documents on the other transactions to the bank executive by courier. The executive placed the folder in his briefcase without looking through it and caught the plane to the site of the meeting with the purchaser and the purchaser's representatives. The following day, the supervising attorney received an angry call from the bank executive. The executive believed that the purchaser would have executed all of the documents during the negotiations, including the documents on the problematic property — if they had been ready.
What went wrong?
Of course, the associate's decision not to include the documents on the problem property — based on the assumption that the client did not need them — was not the associate's decision to make. The associate should have followed up on the conversation with the assistant and contacted the bank executive to seek direction or clarification. If unable to reach the executive, the associate should have proceeded to complete all the documents and request assistance within the firm as needed to meet the deadline.
APPLYING THIS EXPECTATION TO YOUR RESPONSIBILITIES
Respond promptly.
Inform promptly of anticipated delay.
Ascertain your follow-up responsibilities.
Always ask for feedback from clients
A client's reaction to plans in a case can also be sought as part of the regular process of communicating team efforts and progress. It reinforces the client's sense of participation in resolving problems. In fact, many clients increasingly expect the lead counsel to consult them in the process of formulating strategy. They also expect the lawyer to follow instructions they give, unless discussed and modified. The lead attorney or liaison attorney should also probe for any client dissatisfaction that could be avoided with timely discussion and clarification or adjustment. Unless asked, a client may not mention an area in which service is, or is perceived as, poor.
Asking for feedback serves a marketing, as well as a maintenance or retention function and may prompt referrals to other departments of the firm. Frequently, a client is unaware of the firm's range of services and the lead attorney is unaware of the client's additional needs to which others in the firm can respond. Often clients ask for a recommendation of another lawyer or firm to take care of a different type of matter. When the supervising attorney informs the client that the firm regularly handles those matters, the client looks surprised and says, "I didn't know your firm does that." Some clients may have had no contact with lawyers outside of the single practice area or department consulted, and have never been taken on an office tour or told what the rest of the firm does.
CONSIDER:
By referral from an outside advisor, an attorney receives an estate planning assignment for a doctor. While developing the estate plan, the attorney and client *talk about a buy-sell arrangement with the doctor's partners. At the end of the estate planning process, the lawyer asks the client's reaction to the manner in which the service was provided. The lawyer discovers that the doctor would like to move the partnership's medical clinic closer to the main hospital used by the partners. The doctor had never mentioned this desire before because it did not occur to him that it would be of interest to an estate planning attorney. The lawyer explains that the firm has handled the purchase and construction of buildings for other clients and that perhaps the doctor and partners should consider building on raw land that is for sale near the hospital. The lawyer summarizes the process. A few days later, the doctor invites the lawyer to confer with the partners.
What went right?
Initiating discussion about the doctor's satisfaction with the estate planning service resulted in additional financial benefit to the medical group and to the law firm. The medical group decided to build. Using the expertise of several firm lawyers throughout the process, the lawyer coordinated the project from zoning to tenant leases.
APPLYING THIS EXPECTATION TO YOUR RESPONSIBILITIES
How would the client respond if evaluating your performance?
Where are you doing well?
How can you improve?
Read one or more client survey checklists.
When talking to the client, talk in his language
Attorneys must be constantly aware that they are delivering a service — information in useful form, judgment, and recommendations — to clients who have specific objectives and distinctive operating styles, language, and jargon. Thus, for regular communication to be meaningful to the client, lawyers must 1) communicate what they are doing in language that the clients will understand, and 2) explain the benefits or effect of a development in terms of its impact on the ultimate objective. For example, because correspondence with another lawyer may be unintelligible to a nonlawyer, consider whether to attach an explanatory cover letter or note to the client's copy.
When in conference with a client through its corporate counsel and the company's business people, it is important to relate effectively to the business people as well as to the lawyers. The business people have been included in the meeting at someone's invitation for a reason. They expect and deserve your attention, too. Find out their respective involvement and roles in the matter so that you can appropriately interact with them. Also keep in mind that corporate counsel frequently ask their business people to evaluate the service performed by outside lawyers. Their opinions are important to corporate counsel; they are corporate counsel's clients.
If your work product is intended for the client, structure it so that the client can readily understand the significance of your answers and can use the information to take action, assess business risks, or make a decision. Spell out the options before relating the analysis of how each was developed. Put yourself in the client's place as you write and make presentations: think of the benefits before describing the features. Clients — as distinguished from your supervising attorneys — are generally uninterested in the process you follow in conducting an analysis. Instead, clients focus on how your recommendations or efforts move them toward their goals.
APPLYING THIS EXPECTATION TO YOUR RESPONSIBILITIES
Place yourself in the client's position:
When communicating with a client, explain what you are doing in language the client understands.
Relate your advice or response to the client's goal.
Communicate options before the analysis.
Describe benefits as well as features.
Learn to coordinate your service
Concern over coordination of services is typified by one client's comment, "I'm tired of paying for the same letter twice." Although they are aware and appreciative that the "best and the brightest" in a firm are working on their cases, clients often experience frustration and are confused and doubtful about the management of the "legal team" doing the work. A client's comment that "there are too many hands on the file" often stems from poor internal management and coordination of work, and duplicative assignments or responsibilities. A client expects the firm to manage and coordinate its legal services on each matter, and assumes that the firm has an effective internal system to do so. The client expects the lead attorney to be ultimately responsible for managing the firm's efforts and communicating with the client. The client wishes neither to manage the division of responsibilities within a firm nor to worry about accruing costs of duplicative legal services.
To efficiently handle the project and report progress to the client in a timely fashion, team members must communicate effectively among themselves. Client confidence in the firm's "legal team" builds as its work reflects consistent understanding and sensitivity to the client's ultimate objective and concerns. Conversely, client dissatisfaction with service looms if the client contacts an attorney to find out the status of a matter only to discover that the attorney is unable to respond because the project is being handled by another attorney unknown to the client. When more than one attorney — or an attorney and a legal assistant — are working on a matter, the team must be clear about the division of work. For example, junior attorneys should clarify whether they have signature authority for correspondence they prepare or whether it should go out over a senior associate's or partner's signature. Clients can become confused and irritated if they receive correspondence from unfamiliar names. Clients who are corporate counsel increasingly require outside counsel to obtain advance approval of each individual who will work on a matter. Corporate counsel often require an explanation of the expertise and roles of each attorney involved, billing rates, and expected time necessary to handle the matter. These specifics must be discussed among members of the legal team, and carried out consistently throughout the team's work on each matter.
Things to think about
- What are some features of your firm's, department's, or working group's system to manage work on a matter?
- What is the best way for team members to communicate with each other on complex matters? Periodic meetings? Ad hoc discussions as problems arise? Electronic mail?
- How often have you researched or prepared a document only to discover that the assignment had been completed by someone else hours or days earlier or was no longer needed?
- How often has your secretary or a legal assistant come to you having completed an assignment you took care of on the phone the day before?
Periodic meetings among members of the team as-signed to a complex matter can be beneficial. If such sessions are scheduled in advance, with an agenda distributed before the meeting (see Appendix H, "Worksheet for Meeting Preparation"), members are more likely to prepare, present problems and developments, and ask for information they require in order of importance. A "case flow" or "case status" sheet helps direct and maintain the focus of these discussions. This sheet can illustrate the status of each team member's work on the case and planned actions — "l Do's" and timetables — from the last meeting. This allows the lead or supervising attorney to effectively guide discussion of the matter, to request each person to present a summary of his or her activities since the last meeting, and to propose future courses of action. The lead attorney can then provide new information and direction, and make suggestions.
If the lead attorney's secretary or legal assistant at-tends the meetings and then drafts minutes of the items discussed, each team member will have a working status report of all actions on the matter. Moreover, that secretary or legal assistant can serve as the point person for disseminating information about material changes in a matter if each team member communicates updates on status for distribution to the point person.
Close coordination is especially necessary when an attorney interviews for and brings in outside assistance on a project. The attorney must then integrate the outsider's efforts and communicate them to the client. For example, a client who is a defendant in an action re-quests the attorney to inquire whether an accounting firm would be interested in providing financial consulting and litigation support services on the case. The attorney helps the client establish selection criteria, re-views the responses of the various firms contacted, and advises the client on the selection. After the client makes its selection, the attorney coordinates the ac-counting firm's work regarding pretrial preparation.
If a client's advisor is involved — for example, the client's CPA — the supervising attorney or another attorney assigned to the matter should clarify appropriate coordination procedures with the client. If the client instructs the lawyer to work directly with its advisor, the lawyer ought to confirm the instruction in a letter to that advisor and copy the client. Sometimes legal work on an aspect of a matter affects work per-formed by the client's other nonlegal advisors. The client may seek the nonlegal advisor's opinion of the attorney's recommendation. Or, it may become prudent for the lawyer to seek the client's agreement to discuss the proposal with the nonlegal advisor.
CONSIDER:
The client's chief financial officer [CFO] and vice president for human resources are discussing with the lawyers various kinds of incentive compensation plans, including cash awards, stock grants, and stock options. The lawyers are recommending adoption of a stock grant plan they have structured. The CFO mentions that he wants to discuss the accounting impact of the ideas with the company's outside accounting firm.
Should the lawyers offer to call the accountants directly to discuss the recommendation? Have the lawyers worked with the accountants before? What is the CFO's predisposition and reaction to the idea? Do the lawyers believe that the CFO will deliver their recommendation and reasoning accurately?
Comments:
If the lawyers are concerned that the accountants may second-guess the recommendation, they may want to tactfully arrange to talk with the accountants so any objections or concerns they have regarding the recommendation can be addressed. Or, through a discussion of the company's other business plans, the lawyers may position themselves to discuss and develop modifications to the plan.
When interacting with members of the client's staff, treat them with respect and be sensitive to their positions. They are resources, not subordinates. Suppose, for example, an insurance company adjuster's assignment was to take statements of the witnesses before suit was filed and you, as trial counsel, became involved. You review the file and determine that the adjuster should have interviewed and taken a statement of a certain witness.
Would you call the adjuster's supervisor or a staff attorney for the insurance company? It may be more appropriate to telephone the adjuster and ask that the witness be interviewed, instead of calling the in-house lawyer or firing off a letter saying that there is no statement from Mr. White in the file and that his statement needs to be taken. The adjuster reports to a superior and will be concerned about a letter reflecting poorly on his or her preparation. You or your firm will probably work with that adjuster again. Strive to build a good working relationship with each of the persons with whom you work.
That adjuster may move around but his moves will probably be within the industry. He could become an important source of new business. Similarly, peers in other organizations may become decision makers there or elsewhere in a few years.
CONSIDER:
While preparing for a real estate closing, a lawyer spots a problem with the mortgage balance listed by the seller's mortgage company. The lawyer discusses the error with a vice president of the mortgage company with whom she has been dealing and, together with the client's mortgage company, resolves it. The vice president will not attend the closing but assures the attorney that he will relay the resolution to the mortgage officer handling the closing details. Would you take any additional steps?
This attorney also called the mortgage officer to confirm the instructions and to ensure the appropriate adjustments were being made to the draft document. The closing proceeded smoothly.
APPLYING THIS EXPECTATION TO YOUR RESPONSIBILITIES
Know:
Each team member's section of the work.
With whom you are expected to coordinate your work.
How frequently you are expected to coordinate your work.
The agenda for case review or case flow meetings.
