Woodland Hills personal injury attorney Barry P. Goldberg is asked this question all the time. Usually, it is in the context of a perfectly good client wanting to switch lawyers to one that is reasonably responsive. I say “reasonably” because most of these clients are not expecting very much in the way of communication from their lawyer. In fact, any attempt by the lawyer to reasonably respond usually suffices and the client is convinced that someone is actually “driving the bus” on the case. However, when a lawyer refuses to communicate with his client that is when trouble starts.
In a recent survey of legal malpractice insurers, “lack of communication” was listed as one of the five top reasons for the filing of a claim against a lawyer. Needless to say, the “lack of communication” reason is usually a complicating factor in the other four top reasons!
For a personal injury attorney, communication is a significant aspect of the contingent fee arrangement. It is understandable that attorneys that bill a significant hourly rate may be somewhat careful in the number and duration of client communications. On the other hand, in a contingent fee arrangement, I would argue that frequent and meaningful communications are part and parcel of the attorney client relationship. Further, in the personal injury context, it is absolutely imperative to keep a client informed so that unreasonable expectations are controlled and for the lawyer to be aware of significant developments in a client’s case.
After speaking with literally hundreds of personal injury attorneys on this topic, I have concluded that actually communicating with the client is a fairly low priority for most law firms. Rather, the daily grind of litigation, trial preparation, meeting with prospective clients and moving cases along takes up most of the day and there is not much time left to take client calls or even return them. In fact, many personal injury attorneys screen calls and attempt to delegate that duty to others. Contrary to our human instinct, these clients will not simply “go away” or “forget” that they wanted to talk to their lawyer. Instead, it stews and stews until the client is downright angry.
California Rules of Professional Conduct 3-500 states:
“A member shall keep a client reasonably informed about significant developments relating to the employment or representation, including promptly complying with reasonable requests for information and copies of significant documents when necessary to keep the client so informed.”
A decent argument could be made that any complete failure to respond to a client’s reasonable request for information is a violation of the Professional Rules. So why take any chances?
A corollary to this rule is California Rules of Professional Conduct 3-510 states, in pertinent part:
“A member shall promptly communicate to the member’s client. . . (2) All amounts, terms, and conditions of any written offer of settlement made to the client . . . .”
It is a practice of our office to forward all written offers directly to the client. If a client were to learn that the opposition made a written offer and that it was not communicated, they would be justified in being upset. In fact, it is with some regularity that we get calls from disgruntled clients complaining that they understand that an offer was made in their case but the lawyer will not discuss it with them!
I recommend that all offers be communicated to a client even if oral and even if preliminary in nature. It is an excellent opportunity for the lawyer to explain to a client “what they are up against” and what the lawyer intends to do about it. Further, this is an integral step in managing a client’s unreasonable expectation concerning case valuation. In addition, it provides an opportunity for the client to clarify additional damages that was not considered by the insurer and is a logical point for the attorney to share a reasonable strategy in order to deal with a disappointing initial offer.
Finally, when a good case is really ready for settlement, the communication by the lawyer along the way will pay significant dividends. It is extremely difficult to explain to a client at a mediation (who you refused to communicate with) that his or case is not worth what you both thought when you signed up the case in the first place. If there has been a breakdown in communication, my universal advice for both the attorney and the client is to have a face to face meeting and discuss, among other things, how communications will be handled going forward. Not only will there be a happy client, the lawyer may even earn a favorable review because the attorney demonstrated real caring and professionalism in the face of a potential problem.
