Law Practice Management
BY TIFFANY CHRISTIANSON
There's something central to practicing law that we all do several times per week, if not several times per day, but that was barely mentioned to us in law school: communicate with clients. We were taught how to analyze, issue-spot, research, apply the law, and write persuasively, but we never learned how to explain our very complex craft to the people for whom we are doing it (and by whom we are paid). None of us in private practice researches case law for an argument or drafts a contract or estate plan in a vacuum. There's always a client of some sort on the end of this thing we are doing.
It's easy to speculate about why law schools might skip this topic. First, the bar exam is no laughing matter, and the knowledge and skill needed to pass is significant and vast. So, law schools focus on that. Fair enough. Second, teaching the law and its underlying philosophy to law students is a very different task from giving a nontechnical explanation to clients for practical application. Most law school professors do not work with clients—they're legal scholars and experts in teaching law to students—so perhaps they are not inclined to address client communications in-depth. A third possibility is that, as an entire industry, we fancy ourselves to be excellent client communicators, thank you very much.
Comprehension versus Disclosure
How do we do pull off this elegant hypocrisy? Because of [read with a booming voice]: the Rules of Professional Conduct. These rules are absolutely necessary and worth the repetition we receive in CLEs. They do, however, have a pretty significant unintended consequence. Consider Colo. RPC 1.4. Under that rule, we are to:
(3) keep the client reasonably informed about the status of the matter; [and]
(4) promptly comply with reasonable requests for information.
Once we fulfill those obligations, we mentally check that box. Done. We are respectable attorneys who follow the ethical rules with responsibility and precision!
I have just one question: When you checked that box, did you effectively transfer the concepts in your head into your client's head? Most likely, you did not. There is the unintended consequence: We confuse disclosure with effective communication.
The ethical rules could not practically or fairly hold us responsible for our clients understanding our explanations and advice. Clients bring varying intellect, experience, and effort, all of which is completely beyond our control. But communicating with an...