When it comes to communication, there is one thing lawyers don’t want to hear: they’re not very good at it. CLAIRE CHAFFEY examines why now – more than ever – solicitors need to lift their game when it comes to client care.
According to Lawcover, 40 per cent of claims about solicitors arise because of a failure to communicate. For complaints to the Office of the Legal Services Commissioner (OLSC), poor communication is the second most common category – after negligence. But communication is easy, right?
Often, solicitors think they’re on top of it, talking and explaining and advising their client in a way that makes perfect sense to them. But the client walks away from what can be an already emotionally charged situation not knowing what is going on – and often too ashamed or embarrassed to admit it.
Ensuring that a client understands what you are telling them may seem simple, and this requirement has always been a part of a solicitor’s duty. However, thanks to Rule 7 of the New South Wales Professional Conduct and Practice Rules 2013 (Solicitors’ Rules), this duty is now more explicit than ever, and a breach of the rule can result in a ruling of professional misconduct.
According to Rule 7.1, “A solicitor must provide clear and timely advice to assist a client to understand relevant legal issues and to make informed choices about action to be taken during the course of a matter, consistent with the terms of the engagement”.
So how can solicitors ensure they don’t find themselves on the wrong side of an OLSC ruling?
Pitfalls of poor communication
The Professional Standards Department (PSD) of the Law Society deals with issues of poor communication and PSD manager Anne-Marie Foord sees many solicitors failing in this area.
“The PSD is here to educate, and one of the main points of this education is to stop the complaints,” she says. “We want to raise the standards, of course, and that will flow on to a drop in complaints. So if people are complaining a lot about communication, then why do they feel that their lawyer is not communicating?”
According to Frances Moffitt, a regulatory compliance solicitor with the PSD, lawyers need to have a plan for how they are going to communicate with clients if they are to avoid coming up short.
“I deal with people on a daily basis who are setting up new practices, but they don’t have a business plan. They just set up shop and hope for the best,” she says. “Solicitors need to have a plan. They need to work out how they are going to engage their client – on what basis. How are they going to do it? Is it going to be at a table? On the lounge? Is it going to be different for different clients? Are they going to have checklists? Props? Flow charts? They need to realise that how you communicate with your client isn’t just telling them about the law.”
Moffitt says that for many solicitors, knowing how to find a High Court judgment isn’t terribly useful once you’re running your own law firm. Particularly in small and sole practices, she says, client care is the most important factor.
“Good law practices invest in client care,” she says. “How are you going to engage your client? How will you communicate with your client? It has to be thought out. It can’t just be ad hoc – but, of course, I see that it is ad hoc in a lot of situations.”
According to Moffitt, there are a few things solicitors can do that will go a long way to ensuring they do not breach
Rule 7. First, solicitors need to create the right environment for their clients.
“Often clients will say they understand something when they don’t, because they are embarrassed. It’s not a safe environment for them to give honest responses. So, first of all, create that safe environment,” she says.
“If it’s the first time the client has been in this situation, you are going to have to spend a bit more time with them, to take them through the process. It is better to spend more time with them in the early stages rather than have a complaint at the end because they didn’t understand it.”
Second, says Moffitt, solicitors should ask the client if they have any questions. “If the client is asking relevant questions about the matter and the process, they have obviously connected with you,” she says. “You may need to expand on these a little in words they can understand.”
And using language the client will understand is a key consideration, stresses Moffitt.
“During the training sessions I run, I often ask solicitors to give me another word for a legal term, such as ‘affidavit’. How would you explain what an affidavit is to someone who might be a mum or dad, who has never litigated or had the benefit of a tertiary education? It’s hard for solicitors to come up with another word for commonly used jargon. You need to take time with the client to make sure they understand the words and terminology you’re using.”
Finally, lawyers need to stop talking and start listening. “At the end of the first conference, when you have taken instructions and explained what you can and can’t do for your client, and how much it is going to cost, stop talking and use that other communication skill: listening.
“Ask the client to tell you what it is they understand you can do for them. It’s probably a good idea to say at the beginning that you will ask them to explain this, so they will engage more. Ask them to put into their own words what you have told them.
“We are all trained in evidence in chief. We have to listen. We ask questions. Guide them through. Confirm or correct along the way. If you don’t do this, you won’t have their words to put back into the confirmation of retainer letter that you are going to send to them.”
Foord agrees: “The rules say it is the responsibility of the solicitor to ensure the client understands. We are in a consumer-focused environment and the responsibility lies with the solicitor. Even if the client is sitting there saying, ‘Yes, I understand’, you have to say, ‘What do you understand?’ Don’t just take it at face value.”
Often, clients will say they understand something when they don’t, because they are embarrassed. It’s not a safe environment for them to give honest responses. So, first of all, create that safe environment.
According to Foord, sometimes – no matter what a solicitor does – the client will still complain about a failure to communicate.
“Sometimes, the lawyer is communicating well, but the client just isn’t listening because the lawyer is telling them things they don’t want to hear. That is a real problem. So the complaint will come in as a failure to communicate and you go over the file and see that’s not the case. They just don’t want to hear it. They block it out.”
So what can solicitors do? “File notes. Write everything down. That hasn’t changed. It’s all about writing down the conversations you’ve had. You can get your client to sign something, but you still have the obligation to prove you were satisfied they understood, so document what you did, make a note of it and put it on file.”
Moffit says solicitors need to realise that the job has changed and client care and communication must be at the top of the priority list. “Investing in client care, whether you’re a small or large firm, must be part of your formula,” she says. “You may need to retrain to get it right. Some people do it right naturally, but others find it much harder. These are skills that can be learned and improved. The law is no longer just about the law. The job has to be redefined to include client care and make sure it’s not a one-way conversation.”
Foord agrees, saying investing in client care is “like mental health”. “Solicitors don’t want to talk about it. But when they see it affects the bottom line, that there’s a positive business case for better communicating, they’ll do it. That’s why we put so much effort into researching and trying to show that if you communicate better, you will have fewer complaints, fewer costs disputes.”
The Law Society runs training courses on how to better communicate.
Visit lawsociety.com.au for more.
The 10 commandments of client communication
- Plan: Client engagement requires thought. Sit down and plan how you are going to engage with your clients to best suit your practice.
- Identify: Make sure your client is who they say they are. Ask for ID and chat about their education, where they live, what they do for a living. This creates empathy and also gives you a sense of their ability to understand the situation.
- Collect: Ensure you have as many contact details for your client as possible, in case you need to contact them urgently.
- Create: Creating an environment in which a client is able to be honest and feels free to ask “stupid” questions is essential.
- Empathise: One size doesn’t fit all. You have to walk in your client’s shoes.
- Ask: Does your client have any questions? If yes, are the questions relevant? If yes, this indicates comprehension. If not, you may need to start again.
- Listen: Once you have given advice to your client, ask them to say it back to you in their own words. Confirm or correct as required.
- Pursue: Many clients don’t read letters from their solicitors. Pick up the phone and ask them if they received the letter. Did they understand it? Do they have any questions? Writing something down isn’t a ‘get out of jail free’ card.
- Note: This has always been – and remains – the golden rule. Make file notes of all your conversations with your client.
- Train: Communication skills can be learned and improved. Invest in training.
COMMUNICATIONS CASE STUDY 1
Lederberger & Anor v Mediterranean Olives Financial Pty Ltd & Ors  VSCA 262
The Victorian Supreme Court of Appeal considered whether solicitors were under a duty of care to advise a prospective executrix that acceptance of office as executrix and trustee would render her personally liable for debts of partnership of which, as executrix and trustee, she would become a member. Regarding the duty owed by a solicitor to his or her client, their Honours stated:
- It has long been accepted that a solicitor should make clear to his client the legal effect of a step the client is proposing to take ;
- If a solicitor is retained generally to act in a client’s interests in relation to a transaction into which the client is proposing to enter, the solicitor is bound to go through the contractual documents and explain to the client in terms he/she is likely to understand the rights and obligations to which it will subject him/her. That is especially so where the client is inexperienced in the relevant area or the documents are in unusual form ;
- Even where a client is not lacking in sophistication, but the relationship between the solicitor and the client is one which suggests the client is reliant on the solicitor for advice as may be required, there is a duty on the solicitor to give that sort of advice and it may arise whether or not the advice is specifically sought ;
- Whether the duty is confined to warning of the hidden pitfalls and legal obscurities of the transaction in view and does not include advising on its perceived business efficacy depends on the circumstances of the case. Where in the course of performing a retainer a solicitor becomes aware of information that is not confidential and is of potential significance, the solicitor is
expected to draw it to the attention of the client and point out
its ramifications .
Their Honours found it was reasonable “… to require that the law practice had in contemplation the risk to Mrs Lederberger of being held personally liable for the debts of the business and, therefore, they were under a duty to warn her against it.” 
CASE STUDY 2
Carradine Properties Ltd v D J Freeman & Co  126SJ157
Donaldson LJ observed that “an inexperienced client will need and will be entitled to expect the solicitor to take a much broader view of the scope of his retainer and of his duties than will be the case with an experienced client”.
As such, the solicitor may need to find out:
- The client’s own professional qualifications;
- Whether the client has previous experience with the current legal matter or transaction;
- Whether the solicitor has acted for the client in the past and, if so, the subject of those previous dealings and the scope of the solicitor’s retainer on those occasions.
CASE STUDY 3
Cavenham Pty Limited v Robert Bax & Associates  QSC
This case considered a failure to appreciate the full scope of the retainer, which was related to various loan transactions. The solicitor argued it was a “limited rather clerical type retainer”. The Chief Justice found, to the contrary, that the solicitor was obliged to act generally in the client’s interests, including advising about the need for legal protection against contingencies that may arise – so the client had an adequate understanding – and to give advice protectively even if not sought by the client.
Breach of retainer
The defendant was obliged to act generally in the plaintiff’s interests in relation to the proposed transactions. That extended to the defendant’s advising the plaintiff about the need for legal protection against contingencies that may arise.
It was particularly relevant that the plaintiff was not well-versed in relation to these sorts of transactions, and the defendant should have taken the steps that overall would have led the plaintiff to some adequate understanding. The proper discharge of the defendant’s retainer did not depend on the plaintiff’s actively seeking advice.
The defendant was obliged proactively to give the appropriate advice.
Yet the defendant (solicitor) made no enquiry of the plaintiff as to the level of the plaintiff’s financial or business acumen; the defendant made no attempt to ensure the plaintiff understood the scope of the first loan transaction, and the consequences of the breach of clause 9 as to the requirement of a first registered mortgage in favour of the plaintiff; the defendant did not counsel the plaintiff to consider calling up the first loan when repayment was not made; the defendant made no attempt to ascertain the value of the properties against which security was offered for the second and third loans (or to seek to view the purchase contracts relating to those lots); the defendant did not explore the availability of other assets that could have been provided as security; and the defendant failed overall to explain the risks involved in the transactions .
Consequences of breach of retainer
It was agreed that determining the claim on this basis, judgment was made for the plaintiff against the defendant in the amount of $1,477,420.20 .