Blogger’s note:  Aided by hindsight, I decided that I’m not a fan of the Professional Responsibility Connections (PRC) game that I included with last week’s quiz. So, over the weekend, I created several new PRCs. I intend to try to include a PRConnections puzzle with each blog post.  Today’s is here. [1]

Continuing with the “back to basics” theme of recent posts, I write today to share thoughts on the basics of the duty to communicate.

A common question is:

  • “Mike, what causes clients to file disciplinary complaints.”

Stuart Teicher is a friend of both this blog and the Vermont Bar Association. Last week, he asked me that exact question when interviewing me for his podcast. I gave the nutshell version of the answer that I’ve consistently given here. And that answer goes something like this:

  • “In my opinion, most disciplinary complaints are rooted in a lawyer’s failure to set reasonable expectations at the outset of the representation. Clients aren’t happy when they don’t get what you let them expect to receive. Unhappy clients file disciplinary complaints.”

As a result, I’ve often urged lawyers not only to communicate reasonable expectations to the client at the start, but to disabuse the client of unreasonable expectations whenever they become apparent.

For example, imagine that Lawyer agrees to represent Client in a claim for damages.  From the outset, Lawyer is aware that Client expects to receive $100,000.  Lawyer knows that, at best, the claim is worth $25,000.  However, Lawyer doesn’t disabuse Client of their unreasonable expectation. Then, a few months after Lawyer somehow manages to resolve the matter for $50,000, Client files a disciplinary complaint alleging that Lawyer botched the case and cost Client $50,000.

The scenario spans practice areas. The divorce client who unreasonably expects they’re going to receive all the marital assets.  Or the criminal defendant with a lengthy record who is facing serious felony charges and who unreasonably expects that they’ll never set foot in jail.  No matter how much their lawyer gets them in a settlement, or how little time their lawyer convinces the sentencing judge to impose, the client is not going to be happy.  All because the lawyer failed to disabuse the client of unreasonable expectations.

Now, is it a disciplinary violation to fail to set reasonable expectations? 

I don’t know.

One might reasonably conclude that a client with obviously unreasonable expectations cannot make informed decisions about the representation — in particular, an informed decision on whether to settle. Arguably, such a client may not have received the explanation required by Rule 1.4(b). Ultimately, the scope of the rule is left to Disciplinary Counsel, a hearing panel, and the Vermont Supreme Court.

Still, even if the failure to disabuse a client of unreasonable expectations is not a violation, it often results in disciplinary complaints.  Even if the complaint is eventually dismissed, it’s not fun to go through the process.  Nor is it good for business to have former clients telling everyone how poorly you did. That’s why I stress the importance of setting reasonable expectations at the outset of the representation, including expectations as to:

  • the result;
  • how long it will take;
  • how much it will cost; and,
  • how often the lawyer will communicate with the client.

Which brings me to my final, and perhaps most important, point.

Often, setting and managing client expectations necessarily includes delivering advice that the client won’t be happy to receive.  A lawyer’s job is not to tell the client what the client wants to hear.   Rather, a lawyer’s duty is to provide the client with candid legal advice.

 Rule 2.1 of the Vermont Rules of Professional Conduct is entitled “Advisor.”  The first line is:

  • “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice.”

Comment [1] falls under the heading “Scope of Advice.” It makes my point better than I ever have:

  • “A client is entitled to straightforward advice representing the lawyer’s honest assessment.  Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront.  In presenting advice, a lawyer endeavors to sustain a client’s morale and may put advice in as acceptable a form as honesty permits. However, a lawyer should not be deterred from giving candid legal advice by the prospect that the advice will be unpalatable to the client.”

In closing, consider what you’d expect from your oncologist, auto mechanic, dentist, financial advisor, or anyone else to whom you turn for advice.  Or from your lawyer if you ever need to hire one!  You’d expect candid advice that corrects any unreasonable expectations that you might have.  The advice might not be palatable or what you hoped for, but it’s the advice that you’re entitled to receive in order to make the informed decisions that are yours to make.

Your clients are entitled to nothing less.

As always, let’s be careful out there.

Related posts:

[1] To play: click on 4 that you think share a common theme, then hit “submit.” If the answer is correct, the connection will be revealed. If the answer is not correct, nothing will happen and one of your mistakes will be deducted. De-select a square or squares and try again.  Each game includes at least one group that shares a connection related to professional responsibility and/or the Rules of Professional Conduct.