On Risk Management: Heading Off Client Unhappiness
By Kay G. Kenny
The Daily Record, October 2, 2000

Much of risk management for lawyers can be boiled down to two fundamental principles: First, keep clients happy; second, if it is not in writing, it does not exist!

The one common element in all legal malpractice claims is a dissatisfied client. Often, this client is not dissatisfied with the legal services but with the way he or she was treated. And, much of this dissatisfaction could have been headed off if the attorney had taken the time to confirm their discussions and in writing.

Since poor client relations can lead to malpractice claims, there are a number of steps you can take to enhance client satisfaction and reduce the likelihood of being involved in a legal malpractice action.

Return phone calls
Have a system for returning telephone calls within 24 hours. The un-returned phone call is the most common complaint among clients. Lawyers exasperate their clients with this very bad habit! Consider how irritated you feel when you don’t get a return call from opposing counsel, one of your own associates, your dentist or your doctor. Your client feels the same frustration.

Returning phone calls promptly shows your clients that you value their business and feel their matter is as important as any other. It is the quickest and most inexpensive way to bolster client satisfaction. Start with a hard and fast rule that all calls must be returned by the end of each day or within 24 hours at the latest. Set aside a time at the end of each day for returning calls.

If you’re in a deposition or closing, on vacation or otherwise occupied, have an assistant return the call, asking the client if the matter is an emergency or if it can wait until your return. This will reduce the number of calls that must be returned by the end of the day. Then, follow through and return the call as soon as possible.

Good news, bad news
Keep clients apprised of the matter’s status, being sure to pass along whatever bad news there may be early and often. Believe it or not, this is good advice! First and foremost, you have an ethical duty to keep clients informed, and that includes delivering the bad as well as the good news. Second, you will fall into that false expectation trap if you put off informing your client of the weaknesses in a case. If you diligently point out potential problems or weaknesses, your client will be better able to make informed decisions and won’t be shocked by an unfavorable result.

Listen, listen, listen
Listen to your clients. Most attorneys are not great listeners, yet listening to your clients is one of your most important tasks. Attorneys who do not listen carefully often fail to identify the true concerns and objectives of their clients and may pursue courses of action against their clients’ wishes.

For example, let’s assume your client has been named in a nasty lawsuit. You believe that the client has an airtight defense and aggressively pursue it. Your client, however, has repeatedly tried to tell you that he or she wants to avoid the publicity of a trial. If you fail to vigorously pursue settlement and the case ends up in trial, you will have an extremely dissatisfied client, even if you win.

The solution is to train yourself to listen to your clients. At the initial meeting, try to determine the client’s concerns and ultimate objective. If you cannot make that determination, then you need to listen more carefully.

Put it in writing
Confirm all major decisions in writing. First, copy the client on everything. Establish a procedure under which your assistant automatically sends the client a copy of every document relating to his or her matter, unless you instruct otherwise. Be sure to attach a standard cover memo informing the client whether this material requires action or if for information only.

Even if the client never reads any of these papers, they serve as a reminder that you’re working hard and not neglecting the matter. Also, a client who receives a copy of your written work product is more likely to pay your monthly bill than one who hasn’t received anything in the preceding month. And, by keeping the client up-to-date, you may flush out minor disagreements before they become irreconcilable differences.

Second, correspond with your clients on a regular basis. Never allow 60 days to pass without contact. If nothing is happening on the file, send the client a brief letter explaining why. You may be waiting for a ruling and no further work can begin until after it has been made. Periodic updates send a positive message that you are working on their behalf.

Calendaring each file for review every 30 to 60 days also helps accomplish this goal. Each Monday, for example, your assistant can pull all of the files scheduled for review that week so you can review its status. If the file indicates that the client has not heard from your office in the last 60 days, dictate a quick letter.

Automatic file reviews not only improve your client relations, they reduce the risk that you’ll neglect a file during busy or stressful periods.

Third, be sure to obtain your client’s written consent when referring matters to other counsel. And, if a client refuses to follow your advice, be sure to document that refusal by memo or letter.

Say goodbye
Send a closing letter when representation ends. The engagement letter you sent to your new client could serve a two-fold purpose: defining when the representation will begin and also when it will end. Or, you may prefer to send a separate letter. This letter should state whether or not you will be responsible for appeals. In addition, it is strongly recommended that attorneys send closing letters that notify clients that with the completion of this representation, certain clean-up matters may be the client’s responsibility.

P.S.…
As a courtesy to your clients — make sure your office procedures include careful scheduling of appointments to prevent long waits.

Conclusion
Nothing serves the lawyer better than clear, accurate documentation that demonstrates what the lawyer told the client and how the client responded. Maintain thorough and complete documentation of every communication and clarification, every choice made in connection with a case or matter and every interaction with the various participants.

Consistency is also important. The impact of documentation is seriously diluted when a lawyer chooses to document only certain matters or certain decisions, suggesting that the attorney was particularly concerned about that matter or decision. And, as always, actions speak louder than words — even written words. Consequently, if actions contradict written records, the documentation may be of no use at all!

Resources

"What is Risk Management?" - by Robert W. Martin, Jr. - The ALPS Risk Management Report, August 2000.
"Loss Prevention Self Audit" - AIM, revised 1992.
"Poor Client Relations Can Lead to Malpractice Claims" - by Anne E. Thar, Esq., ISBA Mutual, June 1995.
Risk Management for Lawyers: The Cutting Edge - CNA/PRO, October 1996.

Kay G. Kenny is assistant general manager of the Legal Mutual Liability Insurance Society of Maryland. This is the second in a series of articles that include claim prevention techniques, designed to minimize the likelihood of being sued for legal malpractice. The material presented does not establish, report or create the standard of care for attorneys; is not legal advice and does not represent a complete analysis of the topics. Readers should conduct their own appropriate research.

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