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