The Standards for Solicitors issued by the Law Society of Scotland state at para 7: “Solicitors must communicate clearly and effectively with their clients. Information should be comprehensive and, where necessary, confirmed in writing using clear and simple language. This allows the client to make informed decisions about the work being carried out or the advice being given”. Few, if any, solicitors would regard themselves as being at risk of failing to discharge that obligation effectively.
Yet, when it comes to the underlying source of claims against the profession (both in Scotland and worldwide), communication problems rank high on insurers’ lists. How does this happen in a profession where such emphasis is placed on language, communication and explanation of complex issues?
The problem is not confined to solicitors. Substantial research undertaken in relation to communication issues in the field of medicine has tended to show that a high proportion of complaints against doctors seem not to relate to clinical competency but rather communication problems (Michael Simpson et al, “Doctor-patient communication: the Toronto consensus statement”, BMJ vol 303, 30 November 1991).
This article is not meant to explore the academic nuances of communication, but to prompt a review of how things can go wrong and what steps can be taken to avoid the common pitfalls.
External and internal communication
When looking at how to interact effectively with clients, consideration needs to be given to both external and internal communications.
External communication: getting things wrong when communicating with the client. If you don’t devote enough attention to listening to, asking questions of and explaining matters to clients, there is an increased likelihood of incorrect assumptions being made, the wrong information being obtained or critical information not being gathered.
Internal communication: leaving aside the internal workplace issues that can arise as a result of poor internal communications, the problem is likely eventually to manifest as an external communication problem. If you fail to communicate with the people on whom you are relying to achieve the client’s desired outcomes, it stands to reason that there is a statistically higher chance of failing to deliver on your firm’s promised service levels.
Case study 1 – communication issue between solicitor and client
Client A was in the business of motorbike sales. The client engaged solicitor R to protect the client’s interest as a tenant in a commercial property lease of a unit. A lease was negotiated and entry taken. Solicitor R failed to appreciate that a significant part of client A’s trade also related to motorbike repair services. The lease prohibited the repair of vehicles from the commercial unit.
In this case, the client believed they had informed the solicitor that they intended to carry on the sales and repairs business from the premises and instructed the solicitor to negotiate the terms of the lease and protect the interests of the business. The solicitor understood the instructions to be to negotiate a basic commercial lease for a motorbike retail business.
What went wrong? What led to the message received by the lawyer being different to the one the client understood to be sent? There could be a number of issues – pressure of time; assumptions based on previous transactions; emailing a report to the client rather than reviewing it face-to-face or over the phone, if the client expressed a preference for this rather than reading detailed reports.
Case study 2 – communication issue between colleagues
A firm was instructed to act in connection with the sale of a plot of land. An overage agreement was to be entered into. The basic element of such an arrangement is that there is a potential extra payment if certain circumstances arise. One of the partners of the firm had taken instructions from the client. The partner then passed the file to an assistant who did not include the terms of the overage agreement in the missives.
It would be easy, on the face of it, to simply class this claim as being an error due to an oversight that could not have been prevented. Further, it could be assumed that the instructions from the partner to the assistant were perfectly clear and it was the assistant that made the omission.
However, there might be subtle underlying reasons for the claim and the omission might have been made by the partner in relaying the client’s instructions to the assistant. This could be down to pressure of time on the partner, inefficient working practices and/or poorly drafted initial file notes. Even if it was the assistant that made the omission, this may have been due to reluctance on their part to request clarification on elements of the deal due to a poor working relationship with the partner; a lack of clarity within the email instructions from the partner; or the assistant being reluctant to clarify instructions direct with the client (perhaps due to a lack of self-confidence).
The claim may ultimately be due to a combination of some or all of the above factors. Each underlying element is potentially identifiable and capable of remediation.
It is worth noting that it might be useful if the solicitor who is intended to handle the transaction is actually present at the meeting at which the client’s instructions are taken.
There are many things that firms can do to help improve communications, both externally and internally. Managing communication effectively (and therefore minimising the risks of miscommunication) is not a destination – it is a continuous journey of improvement.
Be responsive. Responding to client requests for information or updates is a simple task. Prioritising the importance of that task is sometimes not appreciated. It is obvious that with limited resources and a high workload, the busy lawyer can often be more focused on doing the work rather than keeping the client updated. However, failing to respond can often contribute to important information being overlooked. Similar considerations apply to internal communications.
Be proactive. Keeping a client engaged can prevent problems. If there has been no response from a client, rather than assume a course of action is approved, confirm they have actually received the information – clients also have overflowing inboxes, so don’t assume they have actually seen the message. Colleagues also may need prompting to avoid situations where matter-critical information is not provided (resulting in either a delay or a complete omission of information).
Be on time. If you have advised a client that you will respond or provide an update by a certain time, make sure you keep to that timescale. Although you have many ongoing live matters, the client’s own matter may be a significant focus of their work or personal life. If timescales have slipped due to pressure of work, or delay in an expected response from a third party, advise the client of this.
Be transparent. Good communication is helped by transparency. Right from the outset of the solicitor-client relationship, when terms of engagement are issued, effective communication can make the difference between a satisfied or dissatisfied client. See the Lockton article at Journal, September 2018, 44 for tips on the fundamental issues to cover in engagement letters.
Transparency covers the need for openness when something has not gone to plan. Difficult conversations are part of business and avoiding these will not make a problem disappear. This equally applies to internal communications – it is imperative that potential mistakes or oversights are not hidden. Colleagues must operate in an environment where the immediate disclosure of errors or omissions is treated as a priority, with a “no blame” approach.
Be aware of the audience. There is no “one size fits all” approach to communications. Not all individuals have the same requirements or expectations when it comes to explanations. Some people have different learning styles – one client prefers a face-to-face meeting to discuss the issues; another assimilates information better through a written report. Some clients will be more sophisticated or regular consumers of legal services and may not require the same level of explanation as required by someone who is going through a legal process for the first time. The same applies to colleagues – it is tempting to assume a level of knowledge from either junior colleagues or colleagues with different specialisms that may simply not be present.
Be clear. All lawyers assume that clarity in communication is something at which they excel. Thinking you have been understood and proceeding accordingly can have disastrous consequences. Take a moment to consider whether you have experienced the client who much later in their matter has raised questions about a particular course of action and the reasons for it, despite the options having been explained in detail to them. The issue may not be one where the message has been unclear, but rather there has been a lack of confirmation that the message has been understood as intended.
There is no easy solution to managing the risk of communication failures. Gaining an insight into why failures occur is the starting point on a journey of improvement. Every firm will be unique in its approach to managing this risk, but certain fundamental issues should be addressed. Failing to understand the importance of prioritising this risk could leave practices exposed to claims.
In this issue
- Time to promote shared care?
- Client medical records: a matter of right
- Search for the route to healing
- Rights after “same roof”
- Are you a qualified creditor?
- Reading for pleasure
- Opinion: Allan Jamieson
- Book reviews
- Profile: John Laughland
- President's column
- ScotLIS update
- People on the move
- Common law and artificial life
- FAIs: addressing the concerns
- Challenging times
- Shared humanity
- Cases of the paperless will
- How to manage your legal practice for success
- Fairness v Convenience
- Moorov then and now
- Personal licences: the uncertainty continues
- Is Airbnb use a planning matter?
- Insolvency Rules: a positive realignment
- IR35 compliance moves up the ladder
- “Best interests” in the balance
- Scottish Solicitors' Discipline Tribunal
- PSG tackles index-linked rent reviews
- Finding the right seat
- Public policy highlights
- Accredited paralegal update
- Events, and more, for members
- Accredited Paralegal Committee profile
- Second thoughts on executor declarations
- Client communication – a continuous journey
- Reflections from the Commission
- Love my tender
- Ask Ash