Common Communication Problems (Part 5)

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 financial 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, however, are not. Effective communication skills can help mitigate some of the risks associated with dealing with emotional clients.

One of your responsibilities is to explain to your clients that you are not a mere mouthpiece to express their displeasure with their legal issue. Managing your client’s expectations will require you to be firm and forthright 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 allow your client 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 investigations from the complaints department.

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

Use proper communication techniques (tone, content, pacing) to defuse the emotions and help the client focus on objective facts, goals, and plans. Do not let the client’s emotion dictate the conversation. Try not to fuel the client’s emotions! Be constructive.
If you perceive that the client is too emotional to properly instruct you and process your advice, end the meeting and arrange to meet at a later date. This will 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 (this 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 defence 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 counselling.
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.