Client communications during COVID-19

The problem with communication these days is that everybody talks about it and nobody does anything about it.

"These days" has taken on a new meaning since March -- something more specific and, please dear lord, much briefer than the 60s or the Disco Era.

The overused euphemism for our current condition, "these uncertain times," conveys nothing of the health, economic and personal tragedies visited upon so many of us, nor are many people whom I know at all uncertain about it. We hate it. Oh, not commuting 90 minutes each way five times a week is a blessing, but telecommuting could have partly achieved that goal without the loss of sharing a meal, a drink, or even a mutually authorized hug with a dear friend, a colleague, a grandchild.

We are only now getting back into the routine of regular court appearances, depositions, mediations and -- gasp -- jury trials. Except for the trials, these are nearly all conducted virtually. It's great for saving on gas, though I'm beginning to think I've appeared on television more often than Perry Mason, though with fewer "Perry Mason Moments."

Communicating in the COVID vacuum

With so little happening, how are we to maintain communications with our clients? That's what it's all about, isn't it?

The California State Bar Association seems to think so. Our Rules of Professional Conduct, 2020 Edition, are primarily about communication. Including the official comments, the rules use various versions of "inform" 224 times, "communicate" 131 times, "disclose" 103 times and "advise" 51 times. Those combined 501 references to verbal interactions tower over the 48 references to qualities that many might consider more fundamental to good lawyering: "ethics" (22), "competence" (20) and "skill" (6). The rules' message, intended or not, is that what lawyers say is more important to our professionalism than what we do -- turning the hypocritical command, "Do as I say, not as I do," into a maxim.

When the Big Event of the week is a virtual Case Management Conference, one's reports to the client lack the drama of a witness crumbling under cross-examination or a judge granting summary judgment:

"Dear Client:

"We are pleased to report that we successfully appeared in a Case Management Conference this morning. As one party had only recently filed an appearance, the Court did not set a trial date, though it had set trials in April 2022 in some of the 29 cases that preceded ours on the CMC calendar. The Court set our next CMC for February 11, 2021."

Though it's not an occasion to uncork the champagne, a CMC is material to the case and deserves to be reported. Just as important, it is an occasion to contact the client, who like so many has exhausted his or her collection of jigsaw puzzles, walked the dog so often it shies away at the word "walk," and has come to consider complete strangers on LinkedIn "My Peeps." We all crave contact, except for those annoying robocalls about our auto warranties supposedly expiring unless we act now.

The rules require communication with the client. Rule 1.4 obliges us to:

• promptly inform the client of any decision for which the client's informed consent is required;

• consult with the client about case strategy;

• inform the client about significant developments and promptly comply with the client's reasonable requests for information

• advise the client about any relevant limitation on the lawyer's conduct; and

• explain a matter to the extent reasonably necessary to permit the client to make informed decisions.

Other rules require prompt communication of settlement offers and demands (Rule 1.4.1), and inform the client if the lawyer does not have professional liability insurance (Rule 1.4.2). We must obtain the client's written consent before entering into a fee-sharing agreement with lawyers who are not in the same firm (Rule 1.5.1), or when the lawyer is in an actual or potential conflict of interest. (Rule 1.7) There are also other relevant rules, too numerous to include in this piece. (The above standards have been summarized.)

The rules set minimum standards for communications with clients. But does COVID-19 suggest that the minimum standards aren't sufficient?

Practice and Practicality

One of the most frequent complaints by clients about their lawyers is their failure to communicate. These complaints are not necessarily measured by the rules' standards, but by consumers of legal services' subjective sense of whether their lawyers have kept them updated and involved in case strategy, or have "dissed" them by being nonresponsive.

In a study published by the ABA in 2006, some 70% of large corporate clients stated they were dissatisfied by their main outside counsel. Later work expanded upon the study's findings, and found similar complaints outside the U.S. See Clark D. Cunningham, "What Do Clients Want from Their Lawyers," 2013 J. Disp. Resol. (2013). More than 50% of the clients' complaints focused on poor communication: failing to keep the client informed, failing to listen, making decisions without involving the client, and giving unclear advice.

Malpractice law firms representing plaintiffs recognize the opportunity. One such firm seeks new clients with this online advice:

"If your attorney has stopped responding to your messages, you may wonder if they have committed legal malpractice. Learn what to do if your lawyer stops responding to you and what actions you can take to get compensation.

...

"Before contacting a malpractice attorney, you should attempt to contact your attorney multiple times by phone, email and other communication platforms you have used to reach him or her. If your lawyer still does not respond, you can send him or her a letter explaining the communication problems. If at this point you do not hear anything from your lawyer, you should consult with a legal malpractice attorney.

"A knowledgeable legal malpractice attorney can review the circumstances of a case and attempt to communicate with your unresponsive lawyer. The malpractice attorney can then guide you through the legal process and work to get your compensation."

In other words, if you aren't paying attention to your client, someone else wants to.

A failure to communicate or respond isn't legal malpractice, though it may be a warning sign. Actual malpractice is the failure to meet the standard of care of legal practitioners in the locality and area of law. The rules are not malpractice standards. They are disciplinary standards that the State Bar enforces through it administrative proceedings. The client whose lawyer is unresponsive after multiple requests for information might first turn to the State Bar, the Better Business Bureau for legal consumers.

Why, then, might inadequate consultation with a client be a harbinger of a possible malpractice claim? It tends to color the client's assessment of the quality of the attorney's substantive work. Moreover, it affords the client opportunities for Monday morning quarterbacking after something goes wrong: "If my attorney had just called me before filing that ill-advised motion, I would have told her not to waste her time and my money. Instead, the court has imposed a money sanction on us!"

Tips and takeaways

Clients' expectations vary dramatically as how often their lawyers should make contact with them. I recall one client who wanted frequent, short updates, and rarely asked any questions. "You're the expert," he'd say. Another client liked to have wide-ranging discussions about his case, often longer than an hour.

There is no "one-size-fits-all" formula for connecting with clients, but there is a way to tailor the process to an individual client's expectations. Just ask. "Jade, we all have a lot on our minds these days. I'd like to stay in touch by phone just to check in, and whenever there's important news in the case we should discuss. Is once a month OK with you for a routine call?"

COVID-19 has magnified the need for frequent client communications. Clients who have been in litigation pre-COVID may not realize how the widespread eight-month hiatus in case activities has stalled progress, in a system already known for its glacial pace. Litigation novices may likewise wonder why their cases are being set for trial in 2022. If we don't explain the strange new world in which we litigate, clients may wrongly assume we're not providing zealous representation.

A few other tips, which, like those above, are just my views, not State Bar standards:

• With all the terrible news we've shared in 2020, I think most people don't want to be reminded about COVID-19, wildfires, hurricanes, and other calamities in every phone call or email. I lean toward a drawly, "How're you doin'?", and leave it at that unless the client wants an ear to bend. If you have good news to share about the case, that should be your headline.

• A touch of humor can lighten a client's mood, but must be used judiciously. There are many timely subjects that may be good fodder for a wry comment, but making a wise crack runs the risk of giving offense. In "these uncertain times," humor can be a mine field -- be sure you know where each client's mines are buried. And, don't overdo it. You don't want a client to testify, "My lawyer wasn't taking my case seriously. Every time we talked she was telling jokes."

• One thing COVID-19 has not changed: the need to memorialize substantive client communications in writing. A short email will do: "Thanks for our discussion today. We'll proceed with Kincaid's deposition next month, after receiving further documents we may need as exhibits. Will keep you posted."

I miss the "Old Normal." Normalcy returned after the 1918-1920 flu pandemic, and it will return again after COVID-19, with some positive changes in work habits, such as less gasoline consumption, and, I hope, fewer complaints against lawyers from being uncommunicative with clients. 