By Carole J. Buckner
What are the best practices for maintaining successful, ethical, positive and productive client relationships? A successful lawyer works with the client to establish client objectives, and anticipates, minimizes and de-escalates common client concerns and complaints. Effective lawyers keep their clients informed as to their ongoing matters, including external and internal communications, so that clients understand what their lawyers are doing, what their lawyers cannot do, when their lawyers are going to respond, and how much the engagement will cost, while avoiding typical pitfalls that can create misunderstanding and derail the attorney-client relationship. This article will address practical approaches for handling common client concerns consistent with a lawyer’s ethical obligations.
One common client concern is that a client feels they do not know what is happening with their matter. Lack of communication is high on the list of client complaints to the State Bar and frequently referenced in online postings. The best practical approach is to discuss with the client at the time of the engagement how the lawyer will keep the client updated regarding the progress of the representation, so that both client and lawyer have an understanding and reasonable expectations are agreed upon to avoid this issue. To satisfy applicable ethical obligations, the lawyer must promptly inform the client of any required disclosures that are appropriate under the Rules of Professional Conduct, and keep the client reasonably informed about significant developments relating to the representation. In addition, the lawyer is required to send copies of significant documents to the client, and comply with reasonable requests for information, in order to keep the client informed about significant developments. Lawyers are obligated to explain matters as necessary to permit the client to make decisions and consult with clients about the means to establish the client’s objectives. Cal. Rules of Prof. Conduct, Rule 1.4; see also Cal. Bus. & Prof. Code § 6068(m).
Another common grievance by clients is that the client never asked or told the lawyer to take a certain course of action taken by the lawyer. As a practical matter, clients need to understand the respective responsibilities of the lawyer and the decisions that are reserved to the client. One important decision reserved for the client is the settlement of a dispute. The lawyer must promptly communicate to the client any written offer of settlement made to the client and must abide by the client’s decision on whether to settle a matter. A provision in a fee agreement giving the lawyer “sole discretion” over whether to settle a client’s matter was held to be void. Amjadi v. Brown, 68 Cal.App.5th 383 (2021). A lawyer must also abide by the decisions of the client concerning the objectives of the representation. On the other hand, the lawyer can make procedural and tactical decisions about the representation. Cal. Rules of Prof. Conduct, rule 1.2. This difference can be explained to the client at the time of the initial engagement, and can also be the subject of ongoing dialog between lawyer and client throughout the representation.
Tension in the lawyer-client relationship can also develop where a lawyer is not following client instructions. It is important that the lawyer explains to the client in discussing the objectives of the client’s representation any applicable limitations on the lawyer’s conduct. Limitations can arise when a client is asking a lawyer to pursue a claim without merit, or conduct that is criminal, fraudulent or a violation of law. Cal. Rules of Prof. Conduct, rules 1.2.1 and 3.1. For example, claims may be barred claim preclusion doctrines. In the event a client insists that the lawyer bring such claims, the lawyer should explain that the lawyer would be required to limit the scope of representation to avoid pursuing such claims, or withdraw from the representation. Cal. Rules of Prof. Conduct, rule 1.16. The lawyer should explain to the client that pursuing claims without merit may expose the client to a claim for malicious prosecution. Dunning v. Kevin K. Johnson, APLC, 64 Cal.App.5th 156 (2021). Helping the client understand applicable limitations on both lawyer and client furthers the client’s appreciation regarding why a lawyer may not be following the client’s instructions.
Diligence and Client Expectations
Lawyers must conduct the representation of clients in a diligent manner, without undue delay, neglect or disregard. Cal. Rules of Prof. Conduct, rule 1.3. In doing so, lawyers must consider their overall workload, since workload will not excuse a failure to provide legal services with reasonable diligence. Cal. State Bar Formal Op. No. 2021-206. Similarly, lawyers dealing with a personal impairment, such as physical, mental or emotional issues, must make arrangements so that their clients’ matters continue to be handled with diligence. Id.; Cal. Rules of Prof. Conduct, rule 1.1. Setting clear expectations around timing of milestones in the representation can help clients appreciate that sometimes slow progression of a matter does not reflect a lack of diligence by the lawyer.
Clients grow concerned when lawyers are not responding to calls and emails in a timely manner. Similarly, clients may find the legal process frustrating in terms of why things can take so long. Again, from a practical perspective, it is important to set reasonable expectations for the client. This may involve explaining likely timelines and any deviations along the way as the representation progresses. Setting expectations may require letting the client know that the lawyer will sometimes not be reachable due to being in court, in trial, in depositions, in mediation, etc. Lawyers should notify their clients if they will be delayed in addressing the representation due to other matters. Lawyers can use “out-of-office” messages to notify clients of these situations, and can also provide clients with an alternative contact person through such messages, and/or a notification about when the lawyer expects to be able to return a client’s call or email.
Client complaints may involve a wide variety of alleged mistakes on the part of their lawyers. Clients may feel that their lawyer did not understand their business or did not review documents carefully. Lawyers do sometimes make mistakes and it is important that any mistakes be addressed head-on and corrected if possible in a timely manner. Lawyers have a duty of competence which requires that they perform services with skill, learning and ability. Lawyers must keep abreast of their area of practice as well as relevant technology. Where a lawyer’s existing knowledge does not rise to the level of competence, the lawyer may consult with other lawyers, or engage in learning to acquire the required level of competence. Cal. Rules of Prof. Conduct, rule 1.1. Where a mistake occurs, lawyers should consult with supervisors or outside counsel to address the mistake, and must disclose the material facts potentially giving rise to a legal malpractice claim to the client. Cal. State Bar Formal Op. 2019-197. The lawyer must avoid misleading a client. Cal. Rules of Prof. Conduct, rule 8.4.
A common area of friction between lawyers and clients involves the expense of the legal representation. Clients may contend that the work done by the lawyer was not authorized, which can lead to fee disputes. Best practices to avoid such misunderstandings and surprises about legal fees start with explaining and entering into a written fee agreement with the client. After that, ongoing and thorough client communications about the cost of the representation can help avoid problems. Such communications can include discussion of options regarding expenses that can be controlled, as well as expenses that may arise from an opposing party’s actions, which can be harder to control. Budgeting legal fees, with appropriate disclaimers and periodic updating, can also be a helpful part of ongoing communications between clients and lawyers. In addition, an ongoing dialog regarding alternatives for resolving the dispute is appropriate. Where a fee dispute develops that cannot be reconciled between lawyer and client, the situation can end up breaking down the trust and confidence that is important to the attorney-client relationship. Under those circumstances, the lawyer may withdraw from the representation. Cal. Rules of Prof. Conduct, rule 1.16. In doing so, the lawyer should limit disclosure in connection with any motion to withdraw to an “irreconcilable breakdown in the attorney-client relationship.” Cal State Bar Formal Op. No. 2015-192.
Clients may feel that their lawyer is discriminating against them based on their accent, nationality, disability, etc. The best practice for lawyers to avoid problems in this area is to educate themselves to be sensitive to their clients’ cultural differences, language issues and disabilities. Lawyers are prohibited from unlawfully harassing, discriminating or retaliating against clients in connection with the representation of a client or in terminating or refusing to accept representation of a client, on the basis of any protected characteristic, including race, religion, color, national origin, ancestry, physical disability, marital status, sex, gender, gender identity or expression, sexual orientation, age, military and veteran status, or other category of discrimination prohibited by applicable law, whether the category is actual or perceived. Cal. Rules of Prof. Conduct, rule 8.4.1
Reflecting on common client concerns and addressing them in a timely fashion can help lawyers operate in a more positive, productive manner, leading to more successful client relationships.
Carole J. Buckner is Partner & General Counsel, Procopio, Cory, Hargreaves & Savitch, LLP. Ms. Buckner is a member of the Ethics Committee of the California Lawyers Association. The views expressed herein are her own.