Ten Specific Strategies for Avoiding Communication-Based Claims

Problems with lawyer-client communication are the number-one cause of claims reported to LAWPRO. The way to prevent these claims sounds simple enough: Remind lawyers to communicate better with their clients.

However, appeals to “communicate better” can seem vague − or even a little “touchy-feely”. Need specifics? Consider the following list of practical strategies. These ten tips were chosen from Tim Lemieux’s article “Is anyone listening? Preventing communications claims” which appeared in the Fall 2011 issue of LAWPRO Magazine.

To communicate better:

  1. Meet with the client yourself (don’t just rely on a clerk’s intake meeting notes).
  2. Remember that the client is the person with value at risk in the transaction (the client’s representative, child, parent, interpreter, etc. is NOT the client).
  3. Ask questions about WHY the client wants what he or she wants. Why does she want to buy this particular property? Why does he want to disinherit his daughter? Why is she waiving disclosure? Why is he not proceeding against a particular potential defendant?
  4. At the initial meeting, communicate your views about: the client’s prospects of success; your estimates with respect to cost and timing; and an overview of proposed processes and procedures. Document this discussion.
  5. Document your instructions (both initial instructions and changes in instructions, settlement instructions, etc.).
  6. Explain what you will NOT be doing for the client (for example, you will handle a commercial transaction, but cannot provide a tax opinion about its effects; you have been retained to handle a personal injury claim, but not to negotiate with the client’s workplace LTD insurer).
  7. Touch base with the client at regular intervals during a long litigation, even if there’s no news.
  8. Communicate the details of settlement offers in writing; and in addition, explain the effects and consequences of the proposed terms to the client. Review drafts of documents with the client.
  9. Explain the legal effect of settlements, waivers, releases, contracts and anything else that affects clients’ rights. Document these conversations, including any questions or concerns raised by the client.
  10. Send a reporting letter at the conclusion of a matter; include mention of anything that requires follow-up by the client.

Want to know more about how communication problems lead to claims, and how you can steer clear? Browse our full “Communications issue” of LAWPRO Magazine, available at www.lawpro.ca/magazinearchives.

This article is by Nora Rock, corporate writer and policy analyst at LAWPRO.

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