Managing client expectations is critical to building your reputation, sustaining ongoing relationships, and getting referrals.
At the very least, it helps you avoid grievances, ethics complaints and malpractice claims from disgruntled clients.
Practice areas such as family law, criminal defense, and immigration law – where the personal stakes are high and confusion can easily occur – are especially problematic.
Here are tips for (setting and) managing client expectations in your legal practice before representation begins:
Define the prospective client’s objectives
Managing your client’s expectations begins at the initial consultation when you discuss the specifics of the case for the first time, or even at the case evaluation when you receive the initial inquiry.
The first contact normally begins with the prospect calling or emailing your office, or filling out a contact form on your firm’s website. This is typically followed by a brief conversation to determine whether you/your firm and the prospect are a good match. If you are, the next step is to set up a consultation.
The initial consultation is the first opportunity to clarify prospective clients’ objectives, find out what relief they are really seeking, and describe the potential solutions and obstacles.
Mindful listening is essential. When you truly understand the client’s concerns, fears, desires and hopes related to why they are seeking a lawyer, you are better able to develop a positive relationship.
Decide whether to take the case
Rule 1.1, Minnesota Rules of Professional Conduct (MRPC) requires the lawyer to provide competent representation (legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation). Rule 1.3 further requires the lawyer to act with reasonable diligence and promptness when representing a client.
The case could be very interesting and the issues could be very well within your expertise, but the client has unreasonable expectations. Trust your gut instincts. Watch out for red flags. Has the prospect had multiple lawyers before meeting with you? Did he mention fee disputes or grievances against other lawyers? Does the prospect seem impatient and demanding? Do they want to file a lawsuit to mainly punish the other party, regardless of the merits?
At the outset, if you accept the case, you should explain your responsibilities (e.g. responding to telephone calls, providing zealous advocacy) and their responsibilities (e.g. paying their bills on time, providing necessary and truthful information).
Even if you do not accept the case, you are bound by the ethics rules whenever you give advice in circumstances in which a reasonable person would rely on such advice. Remind the person of important deadlines and statute of limitations, and confirm that you are declining the case, preferably in writing.
Clarify who the client is (when third parties are involved)
Having third parties involved in the case can break the attorney-client privilege and prevent the lawyer from offering candid advice. Third parties often include a trusted friend or wise family member who can more articulately explain the facts of a case. They can also include a financially stable friend or relative who pays the legal bills. This is quite common in practice areas of criminal law, family law, juvenile law and immigration law.
Some clients, such as minor children and individuals with mental disabilities, need third parties involved. Rule 1.14 (a), MRPC, states that when a client has a diminished capacity, “the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.” Comment 3 notes that the presence of family members or other persons, when necessary to assist in the representation, generally does not affect the attorney-client privilege. But the lawyer must look primarily to the client when making decisions for the client.
Rule 1.8(f), MRPC allows lawyers to accept fee payment from third parties, provided certain conditions are met. You cannot accept fee payments from a third party unless: (1) the client gives informed consent or the acceptance of compensation from another is impliedly authorized by the nature of the representation; (2) the third party will not interfere with your professional judgment or with the client-lawyer relationship; and (3) you comply with the confidentiality rules under Rule 1.6, MRPC.
To meet client expectations, you must ensure that a third party’s involvement will not materially limit your representation. For example, you must decline the case when the third party is an existing client who presents a real conflict of interest. Even if there is no formal conflict of interest, a third-party payor’s interest might be so different from the client’s that it impairs representation. Make it clear that disclosures will be limited to protect the attorney-client privilege, or obtain a waiver from the client (if appropriate).
Specify the fees and scope of representation
Rule 1.5(b) requires the lawyer to communicate the scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible, preferably in writing.
When solos or small firm lawyer sue a former client for unpaid legal fees, they open themselves up to ethics complaints and malpractice suits. In some situations, the client was dishonest to begin with and never intended to fully honor the fee agreement. Other times, unpaid fees result from unmet expectations. For example, the client did not get the desired result and blames the lawyer for not accomplishing it.
In some states such as Minnesota, flat fees and availability (retainer) fees do not have to be placed in a trust account until earned: advance payments, if agreed upon in writing, are the lawyer’s property but are subject to refund.
A written and detailed fee agreement will help prevent misunderstandings and set appropriate expectations. It should describe the scope of the representation (e.g. what you will do and will not do); how fees are calculated and charged (e.g. flat fee versus hourly fee); and when you will be compensated (e.g. monthly installments, retainer fee, advance payment of flat fee).
You may also include disclaimers in fee agreement, such as notifying the client you cannot guarantee favorable results, despite your best efforts. U.S. immigration lawyers, in particular, may inform clients (in writing) of potential consequences, such as possibly being placed in removal proceedings if USCIS denies their green card application and they are not maintaining lawful nonimmigrant status.
Set appropriate and reasonable expectations
Rule 2.1, MRPC requires the lawyer to exercise independent professional judgment and render candid advice in representing a client. You may refer not only to the law, but also to moral, economic, social, and political factors that may be relevant to the case. Providing a realistic assessment of the case and likelihood of success is part of complying with Rule 2.1.
You will not be hired unless the prospect believes you will make a difference and deliver positive results. You can promise to do high-quality work and provide the best service. But you cannot guarantee a successful outcome because there are so many factors outside your control.
You need to be clear on the fees and costs and how long it will likely take for the matter to be resolved. If there’s a huge gap between the desired outcome and the likely expense, you either help them reset their expectations or decline representation. Unreasonable expectations means you risk doing work that will not be appreciated or compensated.
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Breakdown in attorney-client communication and mismanagement of clients’ expectations lead to unhappy clients and potential ethics complaints. Managing client expectations is an ongoing process that begins even before you accept a case. From screening clients to charging the appropriate fees, what you do and say at the outset affects the quality of the relationship.
Read our related article, Managing Client Expectations – Part II (after representation begins).
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This article provides general information only. Do not consider it as legal advice for any individual case or situation. The sharing or receipt of this information does not create an attorney-client relationship.
The author, Dyan Williams, is admitted to the Minnesota state bar and focuses on the Minnesota Rules of Professional Conduct, which are subject to change. Check your individual state rules of professional conduct, regulations, ethics opinions and case precedents, instead of relying on this article for specific guidance.
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Photo by: Chris Potter, stockmonkeys.com
The very first ethics rule says lawyers must be competent in matters or fields in which they represent clients. Rule 1.1 (Competence) requires you to have substantive knowledge of the law and prepare thoroughly for the representation.
Technology competence should definitely be a concern for Minnesota lawyers, now that the Court has amended the Minnesota Rules of Professional Conduct, effective April 1.
Solo practitioners and many small firm lawyers play multiple roles in their law practice. They are not only attorneys handling client matters, but also managers performing administrative functions and business people running their firms.
The Court order states, “The petition asked the court to approve the proposed rule amendments and acknowledge the proposed amendments to the comments.” The order notes that the petition “is granted as to the proposed rule amendments,” but adds, “The comments to the rules are included for convenience and do not reflect court approval or adoption.”
In 13 States Have Adopted the Ethical Duty of Technology Competence, Robert Ambrogi pointed out the Minnesota order is confusing. It’s not clear whether the Court actually approved Comment 8 to Rule 1.1, which states that lawyers should keep abreast of the “benefits and risks associated with relevant technology” in law practice.
It’s also not clear how the amended comment affects the disciplinary process for lawyers. Brian Tannebaum, bar defense attorney and author of The Practice: Brutal Truths About Lawyers and Lawyering, noted: