Good client communications can be the key factor in bringing a quick end to a malpractice claim or avoiding one altogether.
When a legal malpractice plaintiff claims in court that “I thought my attorney was going to take care of that for me,” or “I would have accepted that last settlement offer had I known my case was weak,” the case will often turn on a jury’s judgment about who is telling the truth. These situations create inherent “fact issues” that can prevent summary judgment.
Legitimate misunderstandings can occur between lawyers and clients, and people can have unexpressed expectations. Putting important communications in writing can ensure everyone is on the same page regarding what the lawyer is doing and not doing, and why, as well as costs. Clarity on these important issues is good for all parties.
Lawyers often shy away from documenting client communications because it feels like “malpractice prevention” or “CYA.” But good client communication is also good customer service. And thoughtful written communication can mean the difference between a swearing match that goes to trial and a case that is disposed of by summary judgment, or better yet, is never brought in the first place.
Good client communications start with the engagement letter. This can do many things, but should cover the essentials of “who,” “what,” and “how much.”
First, be specific on who you are representing. If a potential client comes in wanting to sell the company he and his brother own, is he the client? Are he and his brother joint clients? Is it the company being sold? This decision needs to be made at the outset of the relationship, and it should be stated clearly in the engagement letter.
Second, it is important to lay out what the lawyer is agreeing to do. Defining the scope of the representation in the engagement letter can ensure things don’t fall through the cracks, and can prevent a revisionist history years later when something goes wrong.
Texas Disciplinary Rule 1.02(b) permits a lawyer to limit the scope of representation if the client consents. But if this is not in writing, a jury may well believe the lawyer undertook much broader duties. For example, a client may later argue he thought the lawyer he hired for a specific litigation matter would also put the client’s insurance carrier on notice of the claim, even if that was never discussed. Or a client may hire a lawyer simply to paper a transaction that has already been agreed to in principle, but then later argue the lawyer should have negotiated a better deal or should have advised the client about the tax or regulatory implications of the transaction.
Third, the engagement letter should address fees. Having a written fee agreement is a good practice in most circumstances, and certain fee agreements must be in writing, including contingent fee cases and cases in which the fees will be split among lawyers who are not in the same firm. (Rule 1.04(d) and (f)). A key factor in determining whether a particular fee is “unconscionable” is whether the lawyer provided the client with a “clear and accurate explanation of how the fee was to be calculated” at the outset of the representation. (Comment to Rule 1.04). In fact, Disciplinary Rule 1.04(c) requires that, for a new client, “the basis or rate of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation.”
Communications Throughout the Engagement
Malpractice claims and grievance complaints often start with: “The lawyer never told me that,” relying on Disciplinary Rule 1.03’s requirement that lawyers keep their clients “reasonably informed about the status of a matter and promptly comply with reasonable requests for information.”
Archiving emails updating the client on good or bad developments, thoughts on the strengths and weaknesses of the case, or the risks involved with proposed transaction terms can go a long way toward defusing those claims. For lawyers who are wary of “CYA” emails, descriptive billing entries can be a great tool for documenting work and evolving strategy decisions.
Once the representation is over, it is helpful to send the client a short letter or email saying that the firm is closing its file on the matter. This will address comments to Disciplinary Rule 1.02, which caution that “[d]oubts about whether a client-lawyer relationship still exists should be clarified by the lawyer, preferably in writing, so that the client will not mistakenly suppose the lawyer is looking after the client’s affairs when the client has ceased to do so.”
Having a defined end to the attorney-client relationship also clarifies when a “current client” becomes a “former client,” and thus, whether Disciplinary Rule 1.06 or 1.09 applies to evaluating potential conflicts with future clients. Lawyers may resist communication that seemingly closes a door on a client, but including language such as “we have successfully concluded this matter, but please call me if anything new arises” may help keep the door ajar.
Good client communication is a habit that is good for your practice, good for your clients, and good for loss prevention.
Kelli Hinson is a partner at Carrington Coleman Sloman & Blumenthal, LLP in Dallas and serves as the firm’s general counsel. She practices in the areas of commercial litigation and professional liability, representing law firms, hospitals, companies and the professionals who run them.