“What I want is to be locked in a room naked with you with a sharp knife.” We can probably look back at this comment made by a prominent South Carolina attorney to an opposing party during a deposition in 1998 as the event that finally exhausted the patience of our Supreme Court and as the advent of the new Lawyer’s Oath (or Oath of Civility) which was mandated by Supreme Court Order on October 22, 2003. Prior to the new Oath, decorum in the practice of law had experience a slow but steady decline from an erudite game of gentlemen (and gentle women) to a full contact legal version of the ultimate fighting championship. The fact that we were all sliding down the slippery slope should have come as no surprise. After all, what should one have expected to happen when highly competitive individuals are thrown into a marketplace that was shrinking due to the rising number of lawyers, while at the same time the onslaught of lawyer advertising created the appearance that the rules of engagement were significantly softened? In the new marketplace for legal services, something terrible also happened to clients. For too many lawyers, clients became files or worse – property. From our point of view, lawyers became so consumed with fighting to get clients and fighting with one another that the willingness to take the time to create an actual attorney client “relationship” got killed in the crossfire.
Our practice has a strong emphasis on legal malpractice claims. For the most part, we believe it remains true that friends do not sue friends. A significant number of the potential clients who contact us to express very legitimate upset or displeasure about their prior attorney are clients who really enjoyed no relationship with their former attorney whatsoever. To the extent that there was contact between the attorney and the client, we often hear that the contact was discourteous, non-responsive, and yes, “uncivil.” When the lack of a real relationship is combined with the perception that the client was ignored, demeaned and disrespected, it is not hard to imagine that a claim will be forthcoming after a bad result. Bottom line: clients deserve civility too and we should all consider a new civility oath to clients:
- Be timely responsive to client’s questions and concern for issues;
- Timely return phone calls and emails to clients;
- Provide written periodic status updates to the client on the matter;
- Provide copies of written documents that are generated in the litigation or legal matter;
- Be honest with the client and don’t create false expectations about a result to be obtained or when a matter will be heard by the court;
- Be candid with the client when the client is not being forthcoming with all facts or when certain facts are uncovered that changes the legal issues or may affect the client’s ability to recover;
- If the client terminates the representation, timely provide the client with the complete ORIGINAL legal file (We have countless anecdotes of small and large firms dragging their feet in not providing the client with their legal files or holding files ransom for more money/fees that may be in dispute);
- Do not circumvent the rules of client communication and try to “end run” an attorney who represents a client by trying to communicate with the client directly; and
- After the representation terminates (and especially if it ends badly), do not confront the client in a public place or speak badly of the client. (ie. Don’t call your client a “m**!! F****er” in a restaurant – true story).
For the attorney readers of this post, don’t foster real attorney client relationships just because it will help avoid future claims. Do it because clients deserve it and because it makes for better representation. The fact that it may help avoid a claim in the event a mistake occurs is just a bonus. For the client readers of this post, you are entitled to the attention and respect of your chosen counsel. That is not to say, however, that you have a realistic expectation to like the advice that is offered, but it should be offered in a timely and respectful manner. As in all relationships, there has to be room for disagreement and for reconciliation.
If this post comes off a tad pious, we ask for your tolerance. The intent is to share a candid view of the complaints that we receive and why we think we receive them. If it helps to foster better relationships and avoid future claims, terrific. If it is dismissed outright as impertinent and inapplicable, then maybe our paths will cross down the line.
Eric Bland and Ronnie Richter