Common Communication Problems

Failing to communicate

The most common communication problem occurs when lawyers either delay in responding to communications, or fail to communicate altogether. An "excuse" for failing to respond only serves as an explanation as to why the lawyer failed to communicate, but does not excuse the failure.  Lawyers must be aware of all incoming communications that require their professional attention and must respond to all communications within a reasonable period of time.  In addition, lawyers should ensure that they have a process to document how each communication was dealt with.
For further details on your professional responsibilities respecting communication issues, see The Code of Conduct generally.  Among other sections of the Code, note the following:
3.2-1: courteous, thorough, prompt, timely service. (See paragraph [5] of the commentary for examples of expected practices.)
3.2-5: do not threaten to file a complaint or criminal proceedings in an attempt to gain a benefit.
7.2-1: be courteous and civil and act in good faith. Personal remarks or personally abusive tactics interfere with the orderly administration of justice and have no place in our legal system.
7.2-4: communicate using the proper tone of a professional communication from a lawyer. A lawyer must not communicate in a way that is abusive, offensive or otherwise inconsistent with proper tone.
7.2-6: communication with represented person must be through lawyer.
7.2-9: recommend self-represented person to obtain legal representation.  Ensure that an unrepresented person is not under the impression that the lawyer is acting on his or her behalf.
7.2-10: how to deal with communications received inadvertently.
These rules represent the minimum requirement that you must fulfill, and 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 serve as guidance when responding to communications from clients, other lawyers, and to other communications relevant to your practice.

Communicating with your client

Your clients are paying you to provide legal services and to keep them informed about the progress of their file. A client who is kept informed and educated about his or her legal situation and the services that you are providing has a greater feeling of control over the situation.
Try to follow the communication plan that you have developed with your client but recognize the value in being flexible.  Some matters are best addressed by a quick call, while other matters require that you prepare a letter. Document how you have dealt with the communication you receive from your client.
Assess whether communication from your client raises 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 may not require you to act promptly, but will still require a response. With communication that is urgent, it is important to respond and to let the client know what you are doing, or to seek instructions when required. If the communication is not urgent, it is important to at least let the client know that you have received their communication.  If you haven’t explained to your client that delays may occur, use this opportunity to do so. This allows you to respond to your client, and to actively manage his or her expectations. If the client’s communication raises issues that can be dealt with at a later date, you should communicate with the client and explain that the matter doesn’t require immediate attention, but that you have made a note in your diary.
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.
You may be in situations where your client communicates with you too often. This might happen, for example, because you failed to establish proper communication protocols with the client, the client is ignoring those protocols, the client is a micromanager, or the client requires constant affirmation from the lawyer.  Whatever the reason, you need to get this situation under control. You should already have a communication plan in place, but if not, it is time to establish a reasonable one that will work. If you already have a written plan in place, refer the client to it.  Have a discussion with your client to explain that you intend to follow the plan, or that you must have a discussion about modifying the plan to get the situation under control. Document your communication with the client, and confirm the plan in writing.
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.
Remember that 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.

Communicating with other lawyers

If you practice law, sooner or later you will likely encounter a lawyer you find difficult to deal with.  Often, this will be 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. As in all cases, be careful of your response!
If you review the Code of Professional Conduct and consider the oath of office you have taken, you will see that adhering to that code places you on the high road. That is the road all lawyers are expected to travel. Do not let a lawyer who lacks civility and discipline dictate how you practise law. You need to 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 a response. While you should document all communication with other lawyers, it is particularly important to document communications with difficult lawyers.
It is ironic that some lawyers fail to respond to communications in a timely manner, yet when confronted with improper communications, rush to respond with a hasty phone call, email, or letter. Do not get caught in this trap. Take some time and wait until you have calmed down, and then craft a response to an improper communication. After you have drafted your response, consider not sending it immediately. The amount of time you hold your response depends on the urgency of the need to respond. The key is to allow you time to review the response with objectivity, and to 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 written 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.
You should be aware of the circumstances in which you are required to report another lawyer’s conduct; see rule 7.1-3 of the Code of Conduct, however, never threaten a lawyer with the possibility of making a complaint to obtain a benefit as that is contrary to rule 3.2-5 of the Code