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Client Communication: New Approaches to Old Problems

By Gina Hendryx, General Counsel

The Office of the General Counsel receives approximately 1,500 complaints annually alleging improper behavior by an Oklahoma licensed attorney. In 2011, the primary concern in 43 percent of the complaints was neglect of the client or the matter. And, this is not an anomaly. Year after year, the chief complaint received is that the lawyer is not being responsive to the client. Historically, clients complained of delay in the return of phone calls, not being informed of court dates, or kept up to date on the status of their matter. These concerns have not abated. However, with the increased methods of communication including social media, these concerns have morphed beyond the simple, “My lawyer won’t return my phone call.” Complaints now include neglect via Facebook, email, texting, Twitter and FaceTime.

Are you using one or more of these methods to keep a client informed? If so, it is important to remember that traditional rules of client confidentiality, diligence, and competence still apply to nontraditional approaches to client contact.

Oklahoma lawyers have a professional duty to keep their clients informed about their case or representation. Oklahoma Rule of Professional Conduct (ORPC) 1.4 requires the lawyer to:

  • Inform the client of any decision or circumstance with respect to which the client’s informed consent is required by the rules;
  • Consult with the client about the means by which the client’s objectives are to be accomplished;
  • Keep the client reasonably informed about the status of the matter;
  • Promptly comply with reasonable requests for information; and
  • Explain 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 most common complaint is that the lawyer will not respond to the client’s repeated requests for contact with the lawyer. Tandem to this complaint is that the matter is taking too long and the lawyer is neglecting the legal needs of the client. Along with the duty to keep the client informed, the lawyer must also act with reasonable diligence and promptness in representing a client (ORPC 1.3.). Studies have shown that clients often have unrealistic expectations when surveyed on anticipated response time to requests for information from their lawyers. While you may not be able to keep all of your clients informed and happy all of the time, the following suggestions derive from reviewing and investigating this most common of concerns.

SET YOUR CLIENT’S EXPECTATIONS

From the initial interview, set the guidelines for client contact. Have an office policy for returning calls and communicate same to your client. For example, “If I am unavailable by telephone, please leave a message. I return all of my calls on the same day they are received. Many days I do not return from court until late in the afternoon, but your telephone call will be returned.” If your client knows that you will return the call at a certain time during the day, they will not become overanxious when they haven’t heard from you in five or six hours. If you have someone who answers your office telephone, give that person sufficient information to relay to the client regarding when the call will be returned. Maybe your policy is that calls will be returned within 24 hours. The key is to let your client know your policy and then follow through with same.

SET YOUR CLIENT’S MODE FOR CONTACTING YOU

If you do not take/return calls after hours or on the weekends, then do not give clients your cell phone number. From the beginning of the attorney/client relationship, establish the best way for the client to get information to you. For example, “It is better for you to call my office and leave a message or send me an email. That way I will have a record of your call and can return it at the end of the day. Most days I am in court and my cell phone is turned off.” There is nothing more frustrating for a client than calling the attorney’s cell phone only to find that the phone has been turned off or that the message box is full. Determine from the beginning how you want your client to contact you, deviate from that rule only in limited circumstances, and you will have a better attorney/client relationship.

ANTICIPATE YOUR CLIENT’S COMMUNICATION NEEDS

Your client is calling to find out if her case has been filed. You delay returning the call until you get the case filed. The client calls again…and again…This is a common scenario where the return call is put off until you get the work done. This causes the attorney to constantly be in “react” mode. Instead, choose several clients to email each week with an update on the status of their case. Anticipate the client’s need for an update on the status of the matter. For example, “I anticipate filing your case by the end of next week. Just wanted to let you know that I am working on it and will finalize it as soon as possible.” Communicating with the client even when you have nothing substantive to report lets the client know you are working on the matter, you haven’t forgotten about her and can appease the otherwise fretful client.

FOLLOW THROUGH

No tip, suggestion or practice advice will work if not applied. Determine how, when and why you contact your client, explain same with your client at the outset of the representation, and then do what you say you will. Docket time daily to return phone calls and email. Prepare a list of clients to update the first of every week. Clear out your voicemail message boxes. Consistency will be rewarded with happy, non-complaining clients.

Regardless of the means employed to communicate with your clients, the duty to protect client confidential information remains the same. The lawyer’s duty of confidentiality extends to present, former and prospective clients. Lawyers need to know the risks associated with electronically contacting clients and storing clients’ information.

  • Cell phones were once thought to be unsecured and conversations at risk to be “overheard.” However, more recent authorities agree that the expectation of privacy on a cell phone is the same as that of a landline. This is bolstered by the fact that the unauthorized interception of electronic communications is a federal crime pursuant to the Electronic Communications Privacy Act.
  • Email communications have had the same historical acceptance as cell phones. ABA Formal Ethics Opinion 99-413 (1999) states “Email communications, including those sent unencrypted over the Internet, pose no greater risk of interception or disclosure than other modes of communication commonly relied upon as having a reasonable expectation of privacy.”
  • Communicating via Facebook, however, has no expectation of privacy. Lawyers should be very leery of communicating with clients via social media including private messaging through these outlets.
  • Likewise, texting can be problematic. Although performed via cell phone, records of same are kept by the service provider. Confidentiality cannot be assured. Confidential information to or from a client is better shared via another method of communication.

CONCLUSION

Regardless of the method or manner you choose to share information with your client, your ethical duties of confidentiality, diligence and communication must be considered. You must implement business practices and employ business tools calculated to protect client confidences and that assist you in providing diligent and informed representation.

ABOUT THE AUTHOR

Gina Hendryx is the general counsel for the Oklahoma Bar Association. A licensed attorney for nearly 30 years, she received her J.D. and B.S. degrees from OCU. She supervises a staff of 15 and serves as the association’s chief disciplinary counsel. She works with the Professional Re-sponsibility Commission and serves as a liaison to the OBA Board of Governors, OBA committees, the courts, and other local and national entities concerning lawyer ethics issues.

Originally published in the Oklahoma Bar Journal -- Dec. 8, 2012 -- Vol. 83, No. 33