Common Communication Problems

1. Failing to communicate

The most common communication problem involves lawyers who either delay in responding to communications, or fail to communicate altogether. An "excuse" for failing to respond only serves as an explanation for why the lawyer failed to communicate, but does not excuse the failure - there is no excuse to not return communications within a reasonable time or according to the timelines you have promised your client. You should be aware of all incoming communications that require your professional attention, and maintain records as to how each was dealt with.

For further details on communication issues, see the BC Code:

2.1-4: avoid personal remarks and quarrels

3:.2-1 courteous, thorough, prompt, timely service.

3.2-5: do not threaten complaint or criminal proceedings.

3.2-6: no bribes.

7.2-1: courteous and civil.

7.2-4: proper tone.

7.2-6: communication with represented person must be through lawyer.

7.2-9: urge self represented person to obtain legal advice.

7.2-10: dealing with communications received inadvertently.

These rules are not the best standard by which you should practice. Rather, they are the minimum requirement. Satisfaction of these rules does not make you an effective communicator. That can only be accomplished with diligent attention and mindful acknowledgement of interpersonal relationships.

The following observations should guide you on responding to communications from clients, other lawyers, and communications relevant to your practice.

(i) Your client

Your clients are paying you to provide legal services and to keep them informed about their files. A client who is kept informed and educated about his or her legal situation and the services you are providing has a greater feeling of control over the situation.

Try to stick with the communication plan you developed with your client, but recognize the value in being flexible – some matters are best addressed by a quick call, where others require a letter. Document your communications either way. Also bear in mind that your initial strategy and assumptions about a file might change over time. Encourage your clients to provide you with updates of information that might impact on your legal services. It is important to discuss changes in the file with the client when they occur, and to confirm those conversations in writing.

Assess the importance of the incoming communication and identify matters that need to be dealt with expeditiously. In those situations, you have both a duty to act promptly and a duty to respond to the client. Other communications do not require you to act promptly, but still require a response. With the former, it is important to respond and let the client know what you are doing, or to seek instruction where required. With the latter, it is important to let the client know that you have received their communication. It is recommended that your retainer letter set out time frames for your response to client inquiries, so the client's expectation are reasonable and well managed.

What you say will depend on the content of the client’s communication and whether you have been keeping the client informed about matters that might cause delay. If you haven’t explained that delay occurs, use this opportunity to do so. This allows you to respond, and to actively manage your client’s expectations. If the client’s communication raises issues that can be dealt with at a later date, you should still communicate with the client and explain that the matter doesn’t require immediate attention, but you have diarized it.

You may have been in situations where your client communicates with you too often. This might happen because you failed to establish proper communication protocols with the client, the client is ignoring those protocols, the client is a micro-manager, requires constant affirmation from the lawyer, and so on. Whatever the reason, you need to get this situation under control. You should already have a communication plan in place, but if you don’t, establish a reasonable one that will work. If you have a plan, refer the client to it and explain that you intend to stick to the plan, or discuss the need to modify the plan to get the situation under control.

Document your communication with the client, and confirm the plan in writing. Also, make sure to bill your client regularly, so that they understand that their communication with you costs them monetarily.  

There may be circumstances where you find it useful to refer the client to portions of the retainer agreement that are relevant to client communications. The retainer letter is a useful tool to use throughout the relationship to remind the client of the scope of services, and the agreement between you.

You should never put a client in a position where he or she has to make repeated attempts to have you answer a communication. Respond to your clients’ communications, and manage their expectations.

(ii) Other lawyers

If you practise law, sooner or later you will likely run into a lawyer who gets under your skin. More often than not, that lawyer will annoy you because he or she does not conduct himself or herself in the fashion recommended in this course. In other words they might be rude, prone to making personal attacks, or ignore communications. 

Review the BC Code and  the oath of office you swore, they require you to communicate appropriately regardless of someone else's lapse of communication. Do not let a lawyer who lacks civility and discipline dictate how you practise law. You can manage your relationship with these lawyers, using many of the tools that serve you in dealing with your clients. Your professional obligations require you to respond to other lawyers in a timely manner. As with clients, think before you respond, and stick to essential information in formulating your response. While you should document all communication with other lawyers, it is particularly important to document communications with difficult lawyers and to maintain your own civility in your communications.

If confronted with improper communications, craft a response and then wait before responding (the amount of time depends on the urgency of the need to respond).  Try to review the response with objectivity, and edit it as required. Your tone should be civil; the content to the point. It is not improper to advise the other lawyer that their communications are improper and that you expect to be treated with civility and professional courtesy. If they persist, it is acceptable to advise them that future dealings will be by way of correspondence only.

Remember that lawyers must be punctual in fulfilling professional commitments. People have the right to expect this of you, and you have the right to expect it of other lawyers.

If you feel you have to make a complaint against another lawyer, do not threaten him or her with the possible complaint as that is contrary to 3.2-5 of the BC Code. You should always be aware of the circumstances in which you are required to report another lawyer’s conduct; see 7.1-3 of the BC Code.

(iii) People on the other side of the file

When dealing with people on the other side of the file, first determine if counsel represents them. If they have a lawyer, your communications are governed by the BC Code, rule 7.2-6. Don’t communicate directly with a represented individual – communicate with their lawyer.

There may be circumstances where the other person is partially represented. In these situations, the opposing limited scope counsel should inform you of the matters on which you should be communicating with him or her, and which matters the client is handling. Don’t assume, however, that the limited scope lawyer is an effective communicator. If you have any uncertainty, contact the lawyer and insist that they set out in writing the circumstances where it is permissible to contact the person on the other side of the file, BC Code, rule 7.2-6.1. Until you have that confirmation, your best practice will be to communicate with the lawyer. As always, document your communications.

In either case, show respect to the opposite party and try to both understand their position and voice that you understand their position to the party (or her counsel). Differences of opinion are our stock and trade. Recognizing the opposing position and projecting that recognition is the start to a sensible execution of your mandate.

(iv) Unrepresented parties

When you are dealing with an unrepresented, or partially represented party, it is important to ensure they understand you are not their lawyer and are not protecting their interests; see BC Code 7.2-9. Recommend that they instruct counsel. You should also explain to your client the protocol for with dealing with unrepresented parties, including letting your client know that you have to respond to communications from the unrepresented party, and will have to have contact with them to discuss settlement and other matters.

You may find yourself dealing with an unrepresented party who is sophisticated, and who sends you numerous communications in an effort to harass your client and increase your client’s legal costs. This situation commonly occurs in family law disputes. If it occurs, keep in mind that the purpose for responding in a timely manner to communications from the other party is to best serve your client and protect his or her interest. Do not ignore the communication, but consider whether it is appropriate for you to respond with a short communication (e.g., a two-line letter), advising the other party that you are in receipt of their communication and do not have instructions from your client at that time. Also keep in mind that you are not required to accede to unreasonable requests, or time limits, imposed by the other party.

It is critical to document your communications with unrepresented people. In addition, remember that you should never seek to gain paltry advantage in carrying out your duties as a lawyer (2.1-4(c) of the BC Code), but this is especially so when dealing with unrepresented people for these reasons:

  • such tactics will be looked upon unfavourably by the courts and the Law Society;
  • the perceived benefits are illusory; and
  • such conduct has a negative effect on public perception.

The mantras of responding to communications in a timely fashion, documenting communications, being civil, and keeping communications on topic, are equally applicable in dealing with unrepresented or partially represented people.

If you are engaged in a limited scope retainer, ensure you comply with BC Code section 3.4-11. In addition, refer to the recommendations in the Unbundling of Legal Services Task Force Report relating to communications in limited scope retainers and related Law Society communications. If you remain uncertain about your obligations, contact a practice advisor at the Law Society.

(v) Other people

You may have professional dealings with many others, such as landlords, staff, experts, court and registry staff.

Make sure there is a clear understanding of your role and relationship with these people. There are obvious differences between talking to the accounts manager for a company that stores your records, and explaining to a potential witness why you are contacting them, the purpose for which you are interviewing them, that there is no ownership in a witness, that they are not your client, and so on. Comply with section 5.3 of the BC Code in dealing with witnesses. Although the nature of various relationships is different, you still need to communicate in a professional manner. Ensure any obligation you have to pay for their services is clear, and confirmed in writing.

Whether dealing with people you have contracted services from (e.g., storage, delivery services, landlord), uphold your contractual obligations: BC Code section 7.1-2. Pay your bills on time. Confirm your contracts in writing and keep copies of all contracts. Ensure your office systems capture routine billing requirements, and build the time into your practice to manage the business of your practice. Unpaid practice debts can lead to contractual liability, but can also lead to professional conduct consequences.

(vi) Experts

When you are dealing with expert witnesses, pay their bills in a timely manner. If you no longer require the services of an expert, advise them as soon as possible, and in writing. Failure to inform the expert can result in lost time and opportunity for the expert, and carry an expectation that they should be compensated for their lost business opportunities. If you are on a legal aid retainer, explain to the expert the process for obtaining approval and payment of disbursements: BC Code section 7.1-2. If in doubt, contact the Legal Services Society.

Pick the right expert for the case. Do your research and ask questions before retaining the expert. Consider issues such as who is responsible for paying the expert when you are retained on a contingent fee. Before retaining an expert, determine how their fee is calculated and obtain instructions from your client authorizing the use of the expert.

Use particular care when addressing an expert, whether you employ her as a witness or information provider or if she is on the opposite side of a matter. Experts tend to be proud and quick to take offence. They are also likely to be opinionated and speak long and broadly about any slight that they feel they have received.

2. Inappropriate tone and content

Civility in communications is an essential message to understand, and practise. But, the content of your communication is as important as the tone. Don’t clutter your communications with superfluous statements. Professional communications should provide essential information, and do so in clear terms. You should only make statements that are objectively defensible and necessary.

Try to avoid communications that are ambiguous. Be precise. If you have the sense your communications have been misunderstood, take the time to clarify prior communications to ensure there is no misunderstanding. As long as you are not condescending, your efforts to ensure clarity in the face of a potential misunderstanding should be appreciated by your audience. The key is to keep communications on point.

3. Failing to stay objective

Most people hire lawyers when they need help with a significant issue in their life. The legal matter will usually have a monetary impact on the client, but it can also involve important personal and property rights. In some circumstances, particularly in family law, the client is faced with a very emotional situation. This means that your client will often be seeking your advice when they cannot see their situation objectively, and sometimes when they are particularly vulnerable. The fiduciary nature of the lawyer-client relationship, and the trust obligations that arise from that relationship, require that you maintain your objectivity.

While it is appropriate to understand and respect your client’s emotional state, it is inappropriate to mimic it. The problem of over-identifying with a client happens in many areas of law, but is most prevalent in family law. Your client is entitled to feel the way they feel, and to be governed by emotion – you are not. Effective communication skills can help mitigate some of the risks associated with dealing with emotional clients.

Your client has hired a lawyer, and if the client is operating under a misapprehension of what they can expect from you, it is imperative that you disabuse them of any notion that you are a mere mouthpiece for their displeasure. Managing your client’s expectations requires you to be firm and upfront about the services you will provide, and your obligation to provide those services in a civil and professional manner. In a matter that might proceed to litigation, it is particularly important to let the client know that the manner in which client and counsel conduct themselves can have a bearing on the outcome, including cost awards. It is also important to let them know that as a professional, and as an officer of the court, you are required to adhere to a code of conduct.

There are several benefits to ensuring your clients understand that, while you are sympathetic to their situation, you are required to provide them with objective advice. First, being objective and not over-identifying with your client allows you to apply your legal skills with reasoned action, rather than by impulsive reaction. This increases the likelihood of obtaining a favourable result. Second, by not over-identifying with the client, you are less likely to personalize the legal matter. Lawyers who personalize matters are more prone to engage in communications that offend the opposing party or counsel. In addition to being unprofessional, personal attacks and observations can lead to complaints. Third, in circumstances where you give your client free rein to dictate the manner in which you communicate, you become a puppet rather than an advocate for their rights. When matters come to a conclusion, it is not uncommon for the emotional client to remain unsatisfied and complain that you failed to serve them in a conscientious and diligent manner. Lawyers who over-identify with their clients often set themselves up for censure.

Here are some tips to help you deal with emotional clients:

  • Use proper communication techniques (tone, content, pacing) to diffuse the emotions and help the client focus on objective facts, goals, and plans. Don’t let the client’s emotion dictate the conversation. Don’t fuel the client’s emotions! Be constructive.
  • If you perceive the client is too emotional to properly instruct you and process your advice, arrange for an alternate meeting to allow the client an opportunity to get his or her emotions in check. Be cautious, however, not to jeopardize the client’s position by deferring the meeting without assessing the urgency of the situation (e.g., the client might be seeking a restraining order to prevent spousal violence, and be emotional under the circumstances). As in all situations, use reasoned judgment. Be mindful of the rules regarding a client’s capacity to instruct counsel.
  • Take a break to allow the client time to get his or her emotions settled. People are far less likely to retain information and advice when they are upset or agitated (which is another reason to confirm the communication in writing).
  • While it is always a best practice to confirm instructions in writing, it is particularly important to do so with emotional clients. An emotional client may hear something quite different from what you intend to say, and your best defense against future problems is to document and confirm your advice in writing.
  • Have a list of available non-legal resources that might be of use to clients dealing with emotional problems, such as community groups and counselling services. Remember that your job is to provide legal information and advice, not psychological counseling.
  • If an emotional client is seeking services beyond legal information and advice, be sure the client understands that lawyers are not trained or qualified as healthcare professionals.

 

4. Inappropriate affidavits

Some lawyers feel it is appropriate to pepper affidavits with personal attacks and inflammatory language. That technique is misguided. Restrict the content of affidavits to statements the deponent can swear or affirm to be true, and that are necessary to deal with the legal issue. Your client might feel that her husband is a waste of space, who only cares about getting drunk, but that does not mean her affidavit in a custody dispute should state: “Reginald Smith is a worthless slob who loves the bottle more than he does his children!” The language in affidavits should be civil and factual.

Some areas of practice, such as family law, can lend themselves to abuse in affidavits. This is related to the problem of emotional clients and lawyers failing to serve those clients in a professional manner. An affidavit is not a vehicle to spit venom in the most objectionable manner that you or your client can conjure. In addition, certain legal disputes require the parties to have some form of enduring relationship, and using improper language in an affidavit can harm the smooth operation of that relationship. If your client requires continued contact with a spouse regarding custody, exacerbating the situation through improper language is not in the best interest of the children, your client, or society. Your client does not have the right to demand that you produce uncivil affidavits and place them before the court.

5. Inappropriate demand letters

A demand letter should be firm and direct, but polite. You should allow for reasonable accommodations, and explain to your client the value in reasonable accommodation. You should never abuse a reasonable accommodation you have been extended, nor jeopardize your client’s position by allowing the other party or counsel to abuse a reasonable accommodation you have granted. Don’t editorialize or stray off point in a demand letter.

6. Breaching undertakings

When you are retained on matters that are likely to require undertakings, or when the need for undertakings arise, educate the client as to their purpose and the rules governing undertakings. It is important to let the client know that once a lawyer has accepted a proper undertaking, the lawyer cannot breach it, even in the face of instructions from the client.

Don’t insist on undertakings where a lesser form of promise will suffice. When undertakings are required, ensure you comply with the BC Code, Chapters 2.1-45.1-6  and 7.2-11.

7. Appearing as counsel

  • Explain the adversarial process

Take the time to ensure your client understands how the adversarial process works. Your client must understand that litigation involves risk. Even if the client believes the cause is just, the result might not be to his or her liking. The client should also be aware that litigation is costly, and there is a risk that they may have to pay costs. Take the time to explain the concept of cost awards to the client. If, throughout the retainer, the client is pushing you to behave unprofessionally, remind the client of cost sanctions as well as special costs.

In some instances the best course of action will be for the client to settle the case. It is well known amongst lawyers that most filed cases settle. Be sure to explain to your client why cases settle, and have a frank discussion as to why and when settlement is desirable. This conversation is a natural fit with a discussion about costs. Also communicate to the client your obligation to encourage settlement of a dispute whenever it is possible to do so on a reasonable basis, and to discourage continuing  useless legal proceedings: BC Code section 3.2-4. The discussion about settlements also relates to other communication matters raised in this course, such as explaining to the client that you need to communicate in a civil manner with the other side, and the role of undertakings.

When your client comes to you, he or she may have preconceived notions about litigation. Those notions might be misguided. You are inviting complaints if you do not take the time to educate your client and keep them well informed about how the court process works, how settlement operates within the system, and the issue of costs.

When engaged in litigation a lawyer needs to be alert to his or her professional obligations to the client, the court, the state, and other lawyers. Educating your client about the litigation process is important for managing your client’s expectations. Taking the time to explain the ground rules allows the client to understand why you are conducting matters in a certain fashion, and lets them know what to expect. Something as simple as the client not understanding why you bow to the judge, or refer to the opposing lawyer as “my learned friend”, can create problems.
 

  • Role of the court

Your client needs to understand the court’s role. A client might believe the job of the judge is to pronounce the result the client desires. Another client, perhaps for cultural reasons, might not understand the role of a judge in Canada. Take the time to demystify the process by explaining the role and powers of a judge in general, and in the client’s context in particular. For example, in a custody dispute, you should explain both the procedural role of the judge as well as the court’s duty to take into account the best interest of the child, or in a divorce proceeding, to explain the court’s duty under s. 10 of the Divorce Act.

Some clients need to understand that a judge has the jurisdiction to govern conduct before the court, including matters such as contempt and conflicts of interest before the court. You client similarly needs to understand that the duty to act fairly and honourably extends to proceeding before administrative tribunals, even where proceedings are less formal than courts.  BC Code section 5.1-1 and 5.6-1, both speak to the role of lawyers before courts and tribunals. 

 

  • Communicating in court

Here are some simple rules for communicating professionally in court. These observations are intended to supplement the duties contained in the BC Code:

  • Unless you are physically unable, stand when you are addressing the court.
  • Stay seated when opposing counsel is addressing the court.
  • If you have an objection, rise, state the objection, then sit down.
  • Communications between counsel should be directed to the judge. It is bad form to turn to opposing counsel and engage in a conversation.
  • Don’t make personal attacks upon your opponents.

For further information, see Richard Peck, Q.C., “Professionalism: A Lost Art” (International Society of Barristers Quarterly: Vol. 38, No. 4, pp. 466-474), and Richard Sugden, QC, “Civility in the Legal Profession” (International Society of Barristers: Vol. 36, No. 4, pp. 507-523).

 

Community Discussion

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The above is very litigation and small practice oriented. Has anyone considered how some of these rules operate for in-house lawyers? For example, in-house counsel are often required to negotiate with non-lawyers (procurement or other business roles), even where the company employing the non-lawyer has counsel. How does this fit with the rule which requires counsel's consent before communicating with the non-lawyer?

Law is an adversarial profession but maintaining perspective is important; it is not an arena for raw emotion. If someone has irritated you, take 24 hours to respond, discuss the situation with a senior practitioner or a Practice Advisor at the Law Society; the same is true of reporting someone to the Law Society. Our policy has been that if a dispute arises about an undertaking, that it is reviewed by a senior lawyer who may even take over the orderly resolution of the matter.

Email Communication is the norm and is the trap. The commentary is right on when it says take time to cool down before responding. There is no tone or voice in an curtly worded response. Often the intention in the email is misinterpreted by the recipient. The author will realize this upon receiving the response. Ouch!

Explaining beforehand the role of the court (ie. Judge is the decision maker) to the client does help the client with their expectations of their case.  Explaining who will be in court i.e. sheriffs/clerks and what each do and where each party is situated helps to put the client at ease before going into the courtroom.  I think lawyers should act respectful towards each other in the foyers of the courthouse or in written correspondence. 

The importance of refraining from threats related to Law Society complaints cannot be overstated.  However, there is one situation which I believe should be handled with care.

That situation is where another lawyer, perhaps someone newly-called, or practicing outside their usual area of practice, does something which appears to be unethical.  Lawyers in such situations will sometimes do something which is a breach of professional ethics.  Sometimes, it may just be that the person is ethically challenged.  Sometimes, it will be based on ignorance and/or a misunderstanding of ethical obligations.

In the first example, a complaint to the Law Society may be the only effective response.  We cannot afford to leave the impression with such people that they are free to ignore ethical obligations without fear of any consequences.  Doing nothing is a disservice to our clients, ourselves, and the legal profession in general.  It also has the potential to impose ongoing prejudice to those clients where the person on the other side is allowed to get away with unethical conduct.  A complaint to the Law Society merits serious consideration in these circumstances.

It is not the same when the person in question may be acting on the basis of ignorance and/or a misunderstanding of ethical obligations.  It is, of course, possible to fire off a complaint regarding the conduct.  However, this is not necessarily in the best interest of anyone involved.  Dealing with a complaint to the Law Society is perhaps not the best learning tool in this type of situation.  However, if you let it ride, it can ultimately cause prejudice to your client, and to others who are on the other side of disputes handled by the lawyer in question.  It goes without saying that simply ignoring the conduct has the potential to damage the image of the profession in the eyes of the public.

I have rarely been in this position.  When I have, I will typically contact the lawyer in question, and make an attempt to discern whether or not the lawyer is aware of the relevant professional requirements.  If they are aware, and don't seem to care, a complaint may be the only reasonable option.  This is done in a way which cannot be perceived as a threat to file a complaint.

However, there are times when the lawyer in question gives a credible explanation showing ignorance and/or misunderstanding.  In these circumstances, I think it is important to give the other lawyer a chance to clean up their act, and to do so outside the adversial process (potentially) in a way which does not leave any sort of stain on the lawyer's record.

Very early in my practice, I was asked to take over a file from another lawyer.  It is such a long time ago that I am not sure of the details.  However, my best recollection is that transfer of the file was conditional on payment of the other lawyer's bill, and an assurance from the client that the bill would not be challenged.  The other lawyer was relatively junior at a local law firm.  I believe I spoke to him, and he didn't seem to get it.  I then spoke to a partner at the firm, explained the situation, and expressed my concern that the other lawyer was going to get himself in trouble.  The unreasonable demands were withdrawn.

 I wish I could say that the lawyer learned from the experience.  However, he was subsequently sanctioned by the Law Society for conduct which included a similar set of facts, and has been before the Law Society on multiple occasions.  With the benefit of hindsight, it may have been better for me to file a complaint.