Communication – an ethical imperative for lawyers
By Michael Dolan.
Effective communication as an ethical imperative for lawyers cannot be overstated. A solicitor’s failure to communicate effectively with clients in a timely manner may well lead to client complaints to the regulator and possible disciplinary sanction for the solicitor. Or in a worse case, a claim for damages for professional negligence. How is this so and how can these practice management risks be minimised?
The opening remarks of the Hon. Anne Ferguson upon her formal welcome as Chief Justice of the Supreme Court of Victoria on 12th October 2017 addressed the need for improved communication between the judiciary and the community of Victoria it serves:
“As always, communication is very important. In serving the community as Chief Justice, I will treat it as part of my responsibility to do everything that I can to make sure that what judges do, how we do it and why we make the decisions that we do is easily understood by all people. While the result that we reach might be obvious from our decisions, I am not sure that why we have reached the result is always as clear. So we may have to put further thought into how we communicate – both as to the methods of communication and the language that we use.” (1)
These wise words from the State of Victoria’s most senior judicial officer underline the importance of communication in everything that members of the legal profession undertake in their daily work.
The professional conduct rules and solicitors’ communication
The conduct rules provide ethical guidance for Victorian and NSW solicitors:
“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.“ (2)
Timely, effective and courteous communication with clients underpins the very essence of the solicitor and client relationship.
The conduct rules provide many instances of both ethical communication and unethical communication, not only with clients, but with the court and third parties including other solicitors.
Examples of proper communication include a solicitor’s fundamental ethical duty to be honest and courteous in all dealings in the course of legal practice, to inform a client of ADR alternatives to fully contested litigation, to provide sufficient information to a client to obtain informed consent in potential conflict of interest situations, to be absolutely frank and honest in all dealings with the court, to preserve the integrity of evidence in all dealings with prospective witnesses, to disclose to the other side any inadvertent disclosure of confidential documents, and to be open and frank in all dealings with a regulatory authority.
Examples of unethical communication by a solicitor include discourtesy in the course of legal practice (oral or in writing), requesting another solicitor or their employee to give an undertaking in respect of a matter which would require the co-operation of a third party who is not a party to the undertaking, disclosing client confidential information unless permitted by the conduct rules, making irresponsible use of court process and privilege, advising or suggesting that a witness give false or misleading evidence, coaching witnesses, and making unfounded allegations of impropriety against another solicitor without a reasonable factual basis.
The regulator’s advice
In a Fact Sheet published on its website the Victorian Legal Services Board + Commissioner has emphasized the need for solicitors to engage in good and simple communication with clients:
“Communication is a crucial part of the lawyer-client relationship. If your clients understand what is happening, they are far less likely to make a complaint about your service or conduct. Wherever possible speak to your clients using plain English and avoid the use of legal jargon when explaining the legal process. This will help to minimise confusion and improve your clients’ comprehension of what you are saying, particularly if your client is stressed. It is important that you maintain clear lines of communication with your clients throughout the course of a matter. You should aim to respond to any queries or correspondence in a timely manner. It may help to outline your days of availability at the initial consultation and inform your clients in advance of any periods of leave you may be taking over the course of the matter.” (3)
The business case for fast and effective communication with clients
In the modern world, communication underpins our society and the way it operates in ways that could never have been imagined 100 years ago.
Electronic and wireless devices and social media have made communication instant with client expectations of an immediate reply within seconds. Whilst this digital environment must be managed in a sensible fashion, clients will no longer tolerate delays in communication by their solicitors.
Part of a solicitor’s communication with clients must be to manage their expectations in this space.
- Remarks of the Hon. Anne Ferguson upon the occasion of her formal welcome as Chief Justice of Victoria in the Banco Court, 12 October 2017 https://www.supremecourt.vic.gov.au/contact-us/speeches/remarks-of-the-hon-anne-ferguson-chief-justice-of-victoria
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, Rule 7.1 https://www.legislation.nsw.gov.au/regulations/2015-244.pdf
- Victorian Legal Services Board + Commissioner, Working with your client, November 2015 http://www.lsbc.vic.gov.au/documents/Fact_sheet-Working_with_your_client-2015.pdf