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    Managing Risk: Heightened Standard of Care when Communicating with Clients in the Digital Age

    Being responsive to your clients is one thing, but be careful about the expectation level of your clients. If you’re expected to respond at any time, 24 hours a day, that’s an impossible standard of care ... and then there are the confidentiality issues.

    Thomas J. Watson

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    Wisconsin LawyerWisconsin Lawyer
    Vol. 82, No. 12, December 2009

    Managing Risk

    Beware of Raising Clients’ Expectations of Your Availability 

    Just because technology makes it possible to communicate 24-7 doesn’t mean you should be available 24-7. Although it is important that lawyers be responsive to clients and keep them informed, it is equally important to set the ground rules for communicating early on to avoid giving clients unrealistic expectations. 

    by Thomas J. Watson 

    Remember the old days when you basically had three ways of communicating with a client: face-to-face, office telephone, or a written letter? Those days are gone. Now, there are email, cell phones, even instant texting on your Blackberry. Does the advent of this technology mean you should be available to clients 24 hours a day? After all, your cell phone is always on, and you can check your email even on a Sunday.

    Being responsive to your clients is one thing, but be careful of raising your clients’ expectations concerning your availability. An expectation of a response at any time, 24 hours a day, is an impossible standard of care, says Katja Kunzke, president and CEO of Wisconsin Lawyers Mutual Insurance Co. “I think evolving technology can make lawyers’ lives both better in terms of efficiency and harder in terms of expectations. Every device that allows constant access and immediate response – Blackberries, cell phones, email – carries the perhaps unintended message that the lawyer is available to the client around the clock, every day, seemingly without regard to the fact that the lawyer has other clients and other matters to tend to.”

    Sheboygan attorney Bill Fale admits the digital age has changed the way lawyers practice law. “Years ago without cell phones, life was easy, fun, and a lot less stressful. Now we give our clients expectations of instant availability, and I don’t know if that is right or necessary. When they know we care about them and provide quality legal services, I hope that is still sufficient.”

    But is it sufficient?

    Communication Breakdown

    Even with all of this instant-communication technology at our finger tips, many people still think lawyers don’t communicate very well. In a Gallup poll conducted several years ago, a whopping 80 percent of respondents said lawyers should do a better job of communicating with their clients.

    Every time a lawyer doesn’t return a client’s phone message or doesn’t fully explain a case, the image of the profession is harmed. What’s worse is that those communication breakdowns sometimes lead to malpractice claims or Office of Lawyer Regulation (OLR) grievances.

    Lack of communication is the second most common complaint in grievances filed with the OLR, according to the agency’s 2008 annual report. At Wisconsin Lawyers Mutual Insurance Co., attorney communication lapses also are among the most frequently cited by people filing malpractice claims.

    Thomas J. Watson

    Thomas J. Watson, Marquette 2002, is senior vice president and director of communications at Wisconsin Lawyers Mutual Insurance Co., Madison. Contact him at com Tom.Watson wilmic wilmic Tom.Watson com.

    Unhappy or uninformed clients are more likely to have some complaints about their legal matter, and probably about their lawyer, too. So where is the balance? How do you stay responsive to your clients and keep them informed without creating an expectation that they can reach you on your cell phone or get an email response anytime?

    Fale says while computers and email are great in many ways, they can also make life difficult. “I believe that by creating the illusion that we are available at the drop of a hat, we are giving our clients unrealistic expectations, and in our desire to serve, we may be shooting ourselves in the foot with the expectations that we may project to clients. If the illusion is created that we are available 24-7, we are creating a monster. There is nothing like the good old fashioned ‘quality and caring professionalism’ that we showed before technology turned us all into drones that no longer live our lives. The computers that were supposed to make our lives easier are actually making them more hectic and stressful than ever because of the expectations that can result.”

    Setting Ground Rules

    Fale says lawyers have to set the ground rules immediately. “That means talking about expectations at our first meeting. I make it clear that email is a way for me to get back to them quickly and that I’ll do my best to accomplish that, but clients also know that if I’m not in, I can’t address emails. I’ve found clients very accepting of the effort being made to keep them on top of things in a more timely fashion.”

    Kunzke agrees. “If a lawyer wants clients to have full-time access to them, I still think the lawyer needs to be clear in setting limitations of what ‘access’ means.” 

    Milwaukee attorney Diane Diel, past president of the State Bar of Wisconsin, says setting the rules with clients immediately is essential. “I tell clients early and often that they can send me anything they wish to send me in email, but that I will not respond to the email if it requires a discussion, or ‘essay.’ My frequent response to a long, multilayered email is that the client should schedule a call to discuss, which means that I have many more productive telephone conversations than formerly. I try hard not to respond informally or casually to email because of its ‘forwardable’ nature. And, with client email, my goal is to respond only during working hours.”

    Fale says clients do appreciate the efficiency of email, and he hasn’t had a problem with high expectations. “I don’t know if clients expect anything in particular, although they do like the fact that they can get replies quickly. Normally, I’m seeing an appreciative client when they find such a quick turnaround.”

    Madison attorney Mark Borns says that although client expectations can be high, email has made life easier for him. “Clients do expect a quick response, but it is easier to respond. I find email to be a very convenient way to communicate with a client.”

    Diel agrees. “We can communicate basics without the hit and miss of a phone call, and documents are very easily delivered via email. My postage and document shipping costs are way down.”

    But an email can be responded to at 10 p.m. Is that when you want to be working? For some lawyers, it’s a matter of convenience, and the thought of responding to emails late at night or on weekends doesn’t bother them. Borns says, “I think it helps my representation of my clients. And it probably saves the client money because the time I spend responding is less than we might spend talking on the phone. It is more concise. I also find that there is less chance for miscommunication because the client can go back and reread what I wrote, rather than trying to remember what I said.” The downside? “They expect a response no matter where I am,” says Borns.

    There’s another aspect to consider as well. Are you as good a lawyer answering a call at the grocery store as you are sitting at your desk focusing on your client’s case? Kunzke says it becomes an issue of competence. “These devices allow us to frame questions at the speed of sound, but I know of no devices that have increased the speed of thought.”

    Unfortunately, the expectations are coming from more than just clients. A senior partner at a major Chicago law firm, as quoted recently in the ABA Journal, expects his associates to check their Blackberries hourly (unless they are in court) and before going to bed each night. He said that degree of “connectedness” was the reason Blackberries were issued to associates in the first place. Kunzke is appalled at the thought. “This kind of expectation sets an impossible standard of care, not to mention a serious imbalance between professional and personal lives. The standard of care is already very high, and the added expectation that a lawyer is as good a lawyer while watching her kid play soccer as she is while sitting in her office drafting contracts is simply ludicrous.”

    Documentation

    Many clients have Internet access at home, raising the bar for lawyers when it comes to response time. Because of the speed and ease of use, clients might fire off emails constantly. Borns says he likes that there is always a record of his email communications with clients. That helps him retrieve previous communications if there is some confusion as to what was said, and there is always a written record of his client conversations. “I probably kill more trees and print out the emails. On larger cases, I will keep an electronic folder in my email account, or I will download the attachment and save it electronically. And sending a PDF via email is a great way to circulate documents for signatures.”

    Fale says, “I have a separate file in my email for each client but if it is a short representation, I’ll print everything. Depending on the type of email, I might keep paper copies for the file, but since all of them are in a computer file, I can retrieve them when or if needed.”

    Cell Phones

    Like emails, cell phone calls can come at any hour. When I was practicing law, a divorce client called my cell phone right before noon on Christmas Eve. I received the call while sitting in the stands with my two sons awaiting the kickoff of a Packers-Vikings football game (Brett Favre was still wearing green and gold in those days).

    Borns says, “I try not to give out my cell phone number to clients, because then the calls come in at all times of the day and night and at awkward or inconvenient times. That is why I like the Blackberry email function. At least I have some control over when I respond.”

    Diel agrees. “Unless circumstances are extreme, I don’t permit this. When I am only available by cell, I will authorize a ‘one time’ use for a client. Why? Because I pay good money for a landline, and when I can talk on a phone, I am usually near the landline. When I can’t talk on the landline, I can’t talk on the cell phone.”

    Confidentiality

    Confidentiality is another important consideration when answering cell phone calls or writing emails to clients. Borns says that’s one of the downsides to modern communication. “Did the email get through to the client or attorney? Did I send it to the wrong address? I warn clients not to forward emails or ‘reply to all.’ Sometimes a string of emails is sent that includes confidential comments that should not have been sent to the other side of the litigation. I have been sent some interesting communications between the other attorney and his or her client that I doubt they wanted to send to me, but the entire string was sent. The other thing to watch out for is not communicating with a represented party. For example, the other attorney sends me an email and cc’s his or her client. I respond to everyone, and thereby just sent an email to the other attorney’s client. I really watch that I don’t do that.” 

    Kunzke says confidentiality is another reason not to talk to a client on your cell phone while standing in line at Starbucks. “Absolutely no legal advice should be given in that conversation. Confidentiality is a real issue in that circumstance.”

    Borns, on the other hand, is more concerned about the confidentiality of his emails than his cell phone calls. “Perhaps I am naive, but I do not think anyone is listening in on my calls. Nevertheless, I try not to give out my cell number.”

    Conclusion

    It’s easy for lawyers to get caught up in the day-to-day demands of clients, trying to provide the best legal services possible. That’s not a bad thing, but there are limits. As Kunzke says, being available to clients at almost any time of the day or night can put a real strain on the balance between your personal and professional lives. That can hurt you both as a lawyer and as a person.

    Fale sums it up this way. “My privacy is still important. If something is that important that I need to be available, I will be. But otherwise most work can still be, and ought to be, accomplished during working hours.”

    Find the right balance between accessibility and privacy. Set ground rules for your clients, while still allowing them the ease and comfort of hearing from you when they need to. Use your email and cell phone wisely, in a way that benefits your practice and your clients. An informed client is usually a happy client. That generally produces the right result and makes you a better lawyer. But as Borns says, “There is some duty of due care for all parties, including clients. No attorney can be expected to review every letter, every email, or every phone message hourly. While a lawyer certainly owes a duty of diligence to a client, we do not owe turning over every hour of every day to the practice of law.”

    Editor’s Note: Changes to the Rules of Professional Conduct emphasize lawyers’ responsibility to give clients appropriate information to help them participate in decisions about the means and strategies to accomplish the goals of the representation. To learn more, read “Duty to Communicate with Clients,” this month’s Ethics column elsewhere in this issue.    




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