What to do when a client complains, files a grievance or civil action, or hires replacement counsel.
Even when service is exemplary and fees are reasonable, clients sometimes complain. The primary cause of this is a client’s general dissatisfaction with having been involved in the inherently unpleasant activity known as litigation, which may be exacerbated by the fact that the litigation was both expensive and may have produced an outcome below the client’s expectations or wishes. Less commonly, but still possible, is the outcome that arises when we have provided less than exemplary legal services or were we have failed to properly contain costs or manage the client’s expectations regarding litigation fees, or both. At the opposite end of the spectrum, some clients complain simply to obtain discounts against unpaid fees or a partial refund. We have found that approximately 5% of non-corporate clients believe that they are skilled at manipulating attorneys and that only fools pay full price for anything.
While this may sound acerbic or jaded, it is a truth that can confuse attorneys at a time when confusion must be avoided. When a client complains about the outcome in a case, the quality of reporting an attorney provides, legal expenses or any other aspect of our services, we must take the complaint seriously, devoid of any emotional reaction on our own part, and proceed in a logical and equitable fashion to evaluate the merits of the client’s position and treat the client fairly and in a manner that is consistent with the Rules of Professional Responsibility governing the practice of law. For this reason, a written procedure regarding what to do when a client complains is an important resource for all attorneys and support staff members of this Firm.
Client Complaint Response Procedure:
The first two things that must occur when a client complains are to:
- Inform the Firm President (Brett Godfrey) immediately of the circumstance, including a fair disclosure of any mistakes, errors or omissions on the part of the attorney or staff member involved in the representation;
- The Firm will then perform an internal investigation of the facts and circumstances, with an eye toward evaluation of the quality of written communications with the client, billing amounts and descriptions, and the results obtained in the matter.
- The President will then make a decision regarding whether to: (A) supplement reporting; (B) refund any fees; (C) recommend the Client have the matter reviewed by separate counsel; (D) notify our legal malpractice insurance carrier of a potential dispute or claim; and/or (E) consult with ethics counsel.
- From the point of receipt of a client complaint forward, no attorney other than the President or an individual authorized by the President shall have any further direct communication with the Client except as the President may direct. Do not attempt to resolve the situation on your own in an effort to save yourself from any potential embarrassment that may result from the Firm’s management becoming aware of an unsatisfied client or the circumstances leading to the same.
- If a formal complaint is lodged with the Colorado Supreme Court Grievance Committee, the President must be notified and must approve of any written response submitted at the direction of the Committee.
- If a civil action is served upon, or transmitted to, the Firm, the Firm will immediately provide written notice of the same, together with copies of all relevant documentation, to the Firm’s primary liability insurer and insurance broker.
- In the event a pending civil action has been commenced, after notification of our liability insurer and insurance broker, all file materials will be electronically duplicated and the duplicates will be quarantined (stored remotely from our main server) to ensure preservation of the same as of the moment the civil action was commenced.
- Whenever a client’s separate counsel contacts the firm under circumstances indicating that we have been replaced, or that our services have been terminated by virtue of the retention of new counsel, it is inappropriate and unethical to initiate direct contact with that client unless permission for the same has been granted in writing by the client’s new counsel (violation of this provision has resulted in permanent disbarment of Colorado attorneys in the past). This situation should not be confused with the circumstance that arises when the client retains separate counsel for purposes that are outside of the scope of this firm’s retention – it is common for law firms to coordinate where the subject matters of their representation overlap partially but not completely. That situation is not grounds for concern. The key to discriminating between these two situations is to exercise good judgment and common sense in evaluating the nature, tone and import of written communications we receive from other lawyers representing our clients. The rule of thumb to follow in these circumstances is: when in doubt, notify the President of the firm.
Remedying Client Dissatisfaction
Most issues regarding client dissatisfaction can be prevented by understanding the primary causes of client upset; the vast majority of those problems that do arise can be resolved without difficulty if certain processes are skillfully employed. The single greatest cause of client dissatisfaction is a failure on the part of the attorney to communicate properly with the client. The client lacks understanding of the history, status and forecasted outcome, which naturally leads to frustration. When a client does not hear from his or her attorney for an extended period of time, the client tends to think that nothing is being done on the client’s matter and that the client is being neglected. If a client is not properly informed at the outset of the matter regarding what to expect with respect to the nature and course of the litigation, the expected cost of litigation, and the likely outcomes that may arise, the attorney’s services will be measured against an imaginary, hidden standard formed in the client’s imagination – a situation that rarely leads to good relations.
When a client is upset due to a failure to communicate, the best remedy is to communicate. Explain the matter carefully and in a friendly way to the client, and make sure that he or she understands all there is to know about the case, including the causes of uncertainty in predicting outcomes and costs. Such communications must always be backed up in writing, preferably in correspondence to the client (other than text messaging), and in all cases in written notations to the file in Daylite notes or memos stored in the Notes sub-folder in the server.
Two other common causes of client dissatisfaction pertain to undisclosed conflicts of interest and incursion of attorney’s fees and other litigation costs without prior client approval.
All of the above issues can be resolved by conscientious, intelligently prepared and clearly delivered communication to ensure that the client understands what to expect and that the client’s expectations are reasonable in light of what can actually be delivered by the attorney.
Of course, the most egregious offenses lawyers can commit include mishandling or misuse of client trust funds, missed deadlines (including but not limited to statutory periods of limitation), sexual relations with clients (which are flatly prohibited in this firm), neglect of client matters and unreasonable or excessive billing. (On this last point, see our training film entitled “Dangerous Billing Entries.”)
The vast majority of ethical issues that can arise are easily avoided by the use of ordinary intelligence informed by a comprehensive understanding of the Rules of Professional Responsibility; the remainder can be avoided by spotting the issues in advance and addressing them through research and consultation with our separate ethics counsel. The Firm has standing relations with two separate sets of ethics counsel who are on standby for purposes of such consultations.
The key to avoiding difficulty is to be diligent and vigilant with respect to the detailed ethical considerations and implications associated with handling a client matter. When an attorney feels tempted to take risks, cut corners or skip steps, problems ensue. Such temptations must be avoided through the use of extreme care: an attitude just short of outright paranoia can help to keep our clients, you and the Firm safe from harm.