The Strategy of Client Communication

1. The Strategy of Client Communication

2. Ethical Considerations • The Texas Disciplinary Rules of Professional Conduct are found in the Texas Government Code (vol. 3A, 82.062 et seq.). • All rules apply, but Rule 1.03(b) and accompanying comments specifically address communication between attorney and client.

3. Rule 1.03 Requirements • Under Rule 1.03 the attorney must: • 1. keep the client reasonably informed about the case status; • 2. promptly respond to client’s reasonable requests for information; and • 3. provide client the amount of information reasonably necessary to enable the client to make informed decisions.

4. Who makes which decisions? • Clients make strategicdecisions, e.g., those the client must make to direct the lawyer’s work like whether to file a lawsuit or whether to settle and for how much. • Lawyers make tacticaldecisions like those concerning how to implement the lawyer’s work, e.g., when to make a counter-offer during negotiations.

5. Texas Disciplinary Rule 1.02 • TDR 1.02 requires the attorney, with delineated exceptions, to abide by a client’s decisions [regarding, inter alia] the objectives and general methods of representation.

6. Lawyers Biggest Mistake!! • Note: In A Civil Action, Attorney Schlichtmann admits, as a general matter, that one of his mistakes was not integrating his clients more into the decision making.

7. Texas Lawyer’s Creed • Section II – Lawyer to Client: A lawyer owes to a client allegiance, learning skill and industry…

8. Who is the Client? • In communicating with a client, keep in mind who the client is – • 1. If the client is not an individual, the lawyer owes a professional allegiance to the entity and not the individual representing the entity.

9. 2. A client is not necessarily the person paying the bill. For example, insurance companies hire and pay lawyers to represent policy holders. Beware of possible conflicts of interest.

10. No two clients are alike. Client needs should be based upon the client’s individual identity, experience, knowledge and background.

11. What are the Client’s Views and Expectations • Evaluate the amount of responsibility you have for your client and the amount of responsibility you have to your client.

12. The Three Roles of the Lawyer

13. A. The Lawyer as Technician. • Finds the law for client and helps client reach immediate goals as efficiently as possible. • The responsibility to the client is limited: once the lawyer has finished the promised legal work, the responsibility to the client ends. • The responsibility for a client is also limited: the lawyer is only responsible for completing legal tasks competently and the client is responsible for the results.

14. B. The Lawyer as Counselor. • Responsibilities extend beyond competent performance of particular legal tasks. • Views a particular legal problem in the context of all of the client’s legal problems. • Assesses long range goals regardless of whether the client is a “good guy” or “bad guy.”

15. Counselor is responsible for both the ends and means of their clients. • Accountable for what he helps clients accomplish. • Not permitted to excuse himself or his client with the explanation that he was simply doing what the law allows. • Example: general counsel to an organized crime unit.

16. C.The Lawyer as Problem Solver • Responsible for learning about concerns and problems that motivate the client to seek legal advice. • Responsible for offering the client potential solutions. • Has greater responsibility for the client.

17. Lawyer advises client of the legal and ethical risks of seeking unjust ends. • In extreme cases: if the lawyer feels strongly that the client is seeking something that is truly unjust, then the lawyer should refuse to represent the client.

18. Lawyer matches options with client’s goals. • For example, if the client is interested in a speedy resolution of a matter, litigation probably is not a good option.

19. Assessing the Situation • Lawyer identifies those problems that will be the subject of the lawyer’s advice. • Identifies other legal issues that may need attention from some other lawyer – matters outside the scope of the lawyer’s professional competence.

20. Recognizes other problems even when there are not good legal solutions for those problems – perhaps a problem a lawyer cannot help with (emotional or physical problems).

21. The Trust Factor • Lawyer should build trust along the way – without it the client will not listen to the lawyer. • HOW? • Competent communication –clear and comprehensible • Open and accurate

22. Offer Clear Options • Give client enough information to be an effective decision maker. • Explain what an option means for the client and use language comprehensible to that client (know your client). • Never be condescending to a client – but give descriptions that are appropriate for that client.

23. Goals • Explain to the client how the option fits the client’s goals and, • Why the option is a realistic choice for the client.

24. Explain which option is likely to produce success • 1. Has the option produced success in the past? • 2. Explain success – winning at litigation may not produce immediate tangible benefit for a client. (appeal, difficulty of collecting judgment)

25. Strike a Balance Between Certainty and Flexibility • Tell client absolutely accurate predictions are not possible and explain why. • Give information about which of a set of options is most likely to yield success. • Should be able to give a client reasonably definite information about whether chances of success are good or remote.

26. “Real World Solutions” • Avoid abstract or theoretical solutions- would you advise a client to play hardball in a fee dispute with one of his long-time customers? • Remember, real people are involved and affected by your advice to your client. • Feel the pain – recognize existence of client’s emotional concerns – bankruptcy, bet the farm litigation – all cause anxiety.

27. Considerations in Client Letter • Audience • Education, sophistication,experience generally and with legal matters. • Treat your client as an intelligent person – even when making your correspondence clear, comprehensible, and in lay language. • Simplify your letter, do not make it simplistic – no telling who will read the letter!

28. Purpose • What do you hope to accomplish with the letter Are you informing? Persuading? Advising? Defending?

29. Organization • Heading • Introductory Paragraph • Opinion • Summary of Facts • Explanation • Advice • Closing

30. Heading • Establish relationship with reader (if first letter) • Define issue or goal: to confirm your client’s instructions/wishes/questions; • Confirm parameters of recommendation you are making for further action; • Confirm (by inference) those related issues not examined.

31. Opinion • Avoid making predictions with certainty • Put good news in first paragraph – but be aware client may not read further. • Put bad news at the end after the client has had an opportunity to read through explanation and basis for opinion.

32. Summary of Facts • Client may know the facts, but restate them anyway. • If letter is a CYA, then client knows facts you based your assessment on and; • If facts change, assessment may change. • Keep fact section short – state facts legally significant to the issue or important to your client.

33. Explanation • TDR’s require that you give client the information necessary to make an informed decision. • Explain the basis of your opinion in this section. • Provide necessary information in a comprehensible not formidable, format. • Generally, do not use case or statutory cites – unless client instructs you to do so – in-house counsel, for example.

34. Advice • Recommendation - introductory paragraph • Expand discussion • Explain all options and what they mean for that client. • Indicate which options are more likely to be successful. • Analyze pro’s and con’s of any options client may have suggested. • Advise the client which option you think would be in his/her best interest.

35. Concluding Paragraph • Inform the client of scheduled events or • Possible scheduled events • Remind client of anything you need from client • Then, standard closing: “If you have any questions concerning any of the matters that I have discussed in this letter, please do not hesitate to contact me.” or something similar.