If you are like most lawyers who have been practicing for any length of time, you have had the unfortunate assignment of being the bearer of bad news. It is no comfort that your obligation of communication under the Rules of Professional Conduct requires you to give all news to clients—the good, the bad and the ugly. Your gut instinct is to fire off the bad news in the rapid-speak that you hear in disclaimers on infomercials, and then head for the hills before your client blows. But if you take a minute to consider the process, you could find ways to make it easier on yourself and better assist your client. After all, you are in a service profession, and communication, in addition to being an ethical obligation, is part of the service.
If you have been trying to manage your client’s expectations from the outset, the bad news should not come as a complete shock. Rule 2.1 is an oft-overlooked rule that requires you to give your client independent, objective legal advice, even if it’s not what your client wants to hear. If the adverse outcome is within the realm of expectation, your client should not be completely surprised. Laying the groundwork for possible disappointment will make the news easier to take.
When the news hits, the first thing you might want to do is take some time to assess your own emotional reaction. That will put you in a better position to deal with your client’s reactions. You should do whatever you need to do to process the information—try to understand what went wrong, vent to a friend or colleague, go for a run or a walk, or do whatever else helps you relax.
What does the news mean to you? Do you feel that you have failed, that you could have done something to avoid this result, or that you are personally responsible for your client’s plight? Or do you feel angry at an outcome that you believe is unfair? You may feel defensive or responsible to some degree, even though in fact you might have done everything humanly possible to get the result your client wanted. Whatever your reaction, you should take some time to assess the feelings that bubble (or blast) to the surface and make peace with them, so that when you talk to the client your own emotions are sorted out and resolved, and don’t distract you from being able to focus on your client.
It may help to take yourself back to your own experience of being on the receiving end of bad news. Like many people, you might have relived the situation many times over in your head, had trouble sleeping, second-guessed yourself, or had other reactions for some time later. Now consider that your client will most likely do the same. Reflecting on your experience, is there something you can do to make your client’s experience more positive?
Now you can then turn to planning for your meeting with your client. When do you deliver the news? To comply with your ethical obligations, you should do so promptly. As attorney Roger Frechette, a venerable member of the New Haven legal community, once put it, in his clipped cadence and matter-of-fact tone: “Tell the client today. The news won’t be any better tomorrow.” And he was right. Procrastination has no value here, but taking a little time to plan can make all the difference.
How and where? Obviously privacy is a must, whether you meet in a conference room in a courthouse, in your office, or in your client’s home, you and the client need somewhere that you both can feel free to discuss any and all concerns. Having a box of tissue, glass of water or cup of coffee handy could be a lifesaver, and is a gesture of sympathy toward your client’s plight.
Prepare your delivery. Clients need to hear all the facts, and in clear, objective terms. If you inject drama into the mix, the client will likely react in kind, and your chances for a rational discussion of his situation will be lost.
Spend enough time with your client to allow him to process the news. While you might prefer to do the equivalent of a hit-and-run, you owe it to your client to help him digest the new information and understand what it means for him.
Try to empathize with him about the significance of the new development. Even if the client has been prepared in advance for this possibility, he may nevertheless experience a range of emotions, from anger to sorrow to feeling victimized, but you can remain a steady, soothing presence while he digests the information.
This is a time when it can be helpful to point out any strengths you have observed in your client during your relationship. This can serve as a boost to your client’s self-esteem at a time when such a genuine compliment would be most appreciated. Clients want to be treated with dignity by someone who cares about them.
Offer your client a plan forward. What are his options? Your time spent on this before the meeting will pay off here. Not only will you have sat with him during his most difficult moments, been understanding and accepting of his reaction, but you have options to offer so that he can consider a path forward. When the meeting is finally over, your work is not done. It’s a good idea to send a letter reiterating what you have told your client. We all know that people under stress do not often hear everything that is said, engage in selective listening or simply misunderstand. Having a letter will give your client the ability to review what you have told him, enhance his understanding of the situation, and, most important, provide the comfort of knowing that there is a plan going forward.
You might have gone to law school because you didn’t want to be a social worker and have to deal with anyone’s feelings, yours or your client’s. Unfortunately, sometimes it’s a job requirement. But with a little thought and attention, you can make the task of delivering bad news easier on yourself and your client. Remember, an appreciative client is your best advertisement, and an endorsement of the quality of your customer service. And it’s one benefit you can provide that cannot be found on the Internet. •