Communications breakdowns: When a lawyer doesn’t share
Description of Potential Fraud:
In 2014 the broad category of communications accounted for about almost a third of claims reported and claims costs. We asked some lawyers to give their opinions on the various ways lawyer-client communications can break down, such as when lawyers fail to share information.
After getting some work done on his cottage, Dale Orlando, partner at McLeish, Orlando LLP in Toronto, had a dispute with the contractor over fees.
“He was doing work that needed to be done but without clearing it with me first,” Orlando says. As a result the project went over budget. “I should have been communicated with before the work was done, not afterwards.”
Imagine going for surgery without the doctor telling you where they will be cutting. That would be unthinkable. Similarly, why should the client allow the lawyer to proceed without knowing what was being done?
Clients need information so they can make decisions that work for them. Not knowing what is happening in a file can cause people stress and anxiety, says Dilip Soman, a professor of marketing and communication strategy at the Rotman School of Business.
“I’ve had clients come in from other lawyers and say ‘I have no idea what’s happening with my file, I don’t understand a thing about it,’” says Judith Huddart, collaborative family lawyer at Dranoff and
Huddart, Barristers and Solicitors. “And I say ‘Bring your documents,’ and I look at it and say ‘You know you have to be in court next week,’ and they say ‘Well nobody told me that.’”
With the Internet making information readily available, people have come to expect the same level of information availability from their lawyers, says Soman. Simply sharing information throughout the case can help a person feel engaged in the process.
People who feel involved in the decision-making process are more likely to take ownership of the outcome, be it positive or negative.
When that sense of ownership is taken away, there is a feeling of helplessness and a lack of control over one’s own destiny. And should the matter take a negative turn or end unfavourably for the client, the client is more likely to blame the lawyer for the actions taken, since it was the lawyer’s “decision,” not the client’s, that resulted in the unfavourable result.
Take the example of a lawyer’s fee structure, says Soman. Lawyers should lay out exactly how they plan to bill a client: Does a meeting with the senior counsel on the case cost X, but with the junior associate cost half that? Is an email response equivalent to 15 minutes of docketed time, but a phone call is docketed by the minute?
“Information gives [clients] more control,” says Soman. “Once I have control, it is my choices that affect how much I pay. It’s my choices that affect what I get. Whereas if I don’t know, it’s the lawyer’s choices that affect what I get and what I pay.”
That is not to say lawyers should allow clients to take the reins on their files: lawyers still have a responsibility to reasonably manage a client’s expectations. But sharing information also includes ensuring the client has realistic goals and expectations, and understands what can and can’t be done, and how long things will likely take. This gives clients choices.
“As a client, I want the good with the bad,” says Huddart. “Trust me enough to tell me the bad news.”
This is excerpted from the article “Let’s Get Talking“, from the 2011 issue of LAWPRO Magazine. All past issues of LAWPRO Magazine can be found at lawpro.ca/magazinearchives
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