Healthy Communication Boundaries in a Connected World

Two recent events in my professional life have me thinking (and worrying as is my nature) about the push and pull we lawyers experience when communicating with clients. In an increasingly connected world, how do we balance our obligation to respond in a reasonable timeframe with the client’s expectation to receive frequent and immediate responses via text or instant messaging?

The first event is the launch of the Public Concerns Pathway (PCP) from the Law Society of Saskatchewan. I was the Knowledge Engineer on this project that provides the public with clear information about common concerns with legal professionals and steps to resolution. The PCP identifies one of the most common concerns from the public as poor communication. The PCP breaks this concern into three sub concerns:

• Slow or No Response
• Not Explaining
• Not Keeping Me Informed

The ‘Slow or No Response’ sub concern explains the lawyer’s duty to communicate effectively with their client and expected practices including:

• keeping a client reasonably informed;
• answering reasonable requests from a client for information;
• responding to a client’s telephone calls; and
• answering, within a reasonable time, any communication that requires a reply.

To assist clients to better understand whether response times are ‘reasonable’, clients are asked to take the following factors into account:

• the urgency of their matter or request, such as if there are upcoming deadlines; and
• other demands on the lawyer’s or limited licensee’s time that they may need to prioritize – for example, multiple files and holidays.

The second event is the yearly presentation to first-year law students on the importance of effective communications that I co-present with my colleague from the Law Society of Saskatchewan. In addition to outlining the communication obligations as identified in the PCP, my Law Society colleague warns about using more ‘casual’ methods for professional communications. Specifically, text messages. The Code of Professional Conduct does not explicitly ban the use of text, but my colleague stresses that text messages and other casual methods should be avoided, if possible, for the following reasons:

• Sends the wrong message about seriousness, reachability/accessibility;
• Allows for “knee-jerk” responses where more careful consideration may be required; and
• More difficult to track and control.

However, my colleague does acknowledge that in certain circumstances text may be the client’s only method of written communication. If this is the case, the lawyer should:

• Set out boundaries for the client re: use and response expectations;
• Develop a procedure to preserve and file the text communications on the client file; and
• Maintain a professional tone throughout.

Fair advice and similar to that provided by the Law Society of Alberta in Effective Communication Part II – Managing and Documenting the File:

Consider carefully whether you want use text messaging as a method of communicating with clients. Cellular service providers may only keep records for a relatively short period of time. If you use text messaging with your client, you must have a system to keep a record of your communications for the file. You must also be able to prove that a client gave you instructions by text message. Email is a better choice.

If you do use text messaging for some communications, you should not use them for conveying subtle legal information; text messages are short and not designed for this level of information. Text messages also tend to lead to less formal communications and, in some cases, lawyers fall into the trap of using unprofessional or discourteous language when engaging with clients by text message. Texting may also lead the client to expect immediate responses from you at any time of the day or night.

While all the above points are important, I particularly stress the importance of setting healthy communication boundaries for the lawyer’s mental health. We do have an obligation to respond to professional communications within a reasonable timeframe, but not at the expense of our well-being. How do we explain this to clients who are used to receiving immediate responses, even outside of working hours?

The Law Society of Alberta provides practical advice focusing the potential increased cost to clients resulting from frequent communication:

While ongoing communication with the client is important, too much or too frequent communication is costly to the client and distracts from your substantive work on the file. For instance, you might have a client who calls you all the time to micro-manage the file. Presumably, you have already advised the client at the initial meeting or in the retainer agreement that you charge for your time and frequent contacts are costly. If the behaviour persists, remind the client that you charge for your time, that these communications distract from your ability to move matters along expeditiously, and that frequent contacts will result in increased cost to the client. Be certain to document these communications.

If the client is not swayed by the increased cost argument, do we have the skillset required to set a healthy boundary? Generally, the inability to set healthy boundaries is a factor that contributes to the poor mental health of our profession. The Canadian Lawyers Insurance Association (CLIA) identifies Assertiveness/Setting Boundaries as a valuable skill to preserve health in their Wellness Toolkit, a compilation of wellness resources to assist lawyers avoid claims. Four helpful resources are identified, and I suggest you review if you are having difficulty managing your client’s communication expectations:

• Best Way to Say No – CBA Dear Advy
• 24 Hours Demand: Tactics to Help Manage Expectation and Set Healthy Boundaries – CBA Well-Being Hour
• Five Mistakes Lawyers Make When Setting Boundaries and How to Fix Them – Bena Stock
• Boundaries for Lawyers Workbook – Bena Stock

While keeping in mind our obligations, remember that allowing clients to use text messaging may encourage more frequent communications outside work hours. We need to be available to our clients but not always available. Establish communications expectations early and be careful not only in what we communicate but how. The communications method we choose can help protect our wellbeing while ensuring we are meeting our professional obligations.