In all the years I worked for the State Bar as a senior attorney for the Office of Trial Counsel, and all the literally thousands of complaints against attorneys I reviewed, I never saw a client who complained that his or her attorney called them too much. I’m asked all the time what’s the number one complaint against attorneys. It’s not that they’re evil or ill prepared, inexperienced or corrupt; it’s that they think that they’ll return that call tomorrow and tomorrow turns into days, weeks, more weeks and in some cases, a growing inclination to not look at the file again until it’s too late. Perhaps the statute of limitations has run, the tolling agreement has expired, the settlement offer is now withdrawn, or the discovery deadlines have passed. As devastating as one of these events can be to a client’s relationship with an attorney or firm, it’s compounded when the client learns about it from someone else – the opposing party, opposing attorney or the State Bar investigator after he or she receives the complaint that an attorney won’t communicate.
A study was done in medical malpractice cases where it turned out that many plaintiffs said they might have been satisfied if the doctor had just come to them, explained what happened and said how sorry they were. Just the opposite of what the professional liability representatives are instructing the doctors. But just as all attorneys are not evil, the same can be said for clients. The client is entrusting the attorney with one of the most important pieces of their life; generally, they want to know how it’s going.
The Rules of Professional Conduct (Rule 3-500) provide that an attorney must keep the client reasonably informed about significant developments. But what does that mean? Certainly the examples I just cited are significant developments. If something happens that makes or breaks the case, the client is going to want to know. On the other hand, the client is hiring the attorney to use his or her best judgment. Some of the friction can be avoided by having a discussion at the outset about what are some of the important events. For instance, one complaint heard regarding failure to communicate is the client saying he found out that his attorney had been to court on his matter and the client knew nothing about it, or the client heard there was a court hearing and the client wasn’t notified. It may turn out that the hearing was simply a status conference or discovery motion but the client complaining to the State Bar is, at least, a strong symptom of something gone wrong in the attorney-client relationship that might very well have been avoided if regular communication had been established earlier on. If the client is learning about incidents through third parties or taking it upon herself to look into the case status, there is something not working. As I said at the outset, clients don’t complain to the State Bar because their lawyer tells them too much.
Mara J. Mamet