Diligence and Neglect: How You See it is Not the Same as Your Clients See it

With new communication mediums and technology comes new expectations - Photo by Hemera Technologies/AbleStock.com / Getty Images

With new communication mediums and technology comes new expectations - Photo by Hemera Technologies/AbleStock.com / Getty Images

We lawyers are well aware of our ethical rules. Here in Michigan, we have to guard against a charge of "Neglect". The rules governing neglect are clearly set forth in our Rules of Professional Conduct. MRPC 1.3 states as follows:

RULE 1.3 Diligence
A lawyer shall act with reasonable diligence and promptness in representing a client.

What does this mean, and why do lawyers run into problems? The answer lies in the difference between the way you as a lawyer read this and how your clients view diligence. As a lawyer, you probably see this as pretty simple.

Do you show up at your hearings on time? 
Do you have a calendar system?
Do you file lawsuits, Motions, and other pleadings in a timely fashion?
Do you keep most or all of your appointments?

If the answer to these questions is "yes", then you probably think you are on top of your practice and have little to worry about in the area of "Diligence"…

WRONG!

A very high percentage of Grievances are filed against attorneys every year based on complaints from clients that their lawyer is not giving enough attention to them. Although we do not keep records, I suspect that many more clients are lost to attorneys as clients change attorneys because they do not get the attention that they think they should get from their counsel. How can this be?

The answer to this is simple…client expectations. When I started in practice it was in the early 80's. Back then, it was a very different world. We dictated our letters to a secretary who would bang away at an IBM electric typewriter…offices were much louder then…the clacking was loud, it sounded like productivity. The AV rated parters who I worked for assured me that if I received a letter (then it was on paper and delivered by the US postal service) and sent a reply within 24 hours, that I would be on top of my practice. It was not unusual for me to send correspondence and wait a week or more for a response. Insurance clients would wait even more patiently for my reports. The Court Rules (They were the General Court Rules then) allowed enough time for responses to be filed by snail mail, always on paper…sometimes on 8.5"x14" paper. Phone calls (land lines only please, no VOIP) could also be returned in 24 hours…all this was meeting or exceeding expectations…and we did.

That was then, this is now. Notice that the deadlines for response in the Court Rules has not changed much since then. We still have plenty of time (I know, some of you are now disagreeing with me) to respond and file our documents. Notices are sent well in advance of hearings…little has changed in this regard. If you use this "old" standard to determine your responsiveness goals, you are ignoring reality.

We live in a new, faster world and we, as lawyers, are expected to keep up. Do not ignore these new expectations.

Faxes and beepers came along and response time expectations shortened. Then came cell phones and e-mail. The ability to attach reams of text to e-mails came next. Finally, texts… if you do not think that technology hasn't changed expectations you are not paying attention. All of these devices and modes of communication have drastically altered the way your clients see the issue of "responsiveness" which has a corresponding effect on their views of whether or not we are "diligent" in our practice.

Clients now expect much faster turn around times. Just listen to the people around you and I’m sure it won’t be long before you hear:

"I texted him 5 minutes ago, where the heck is he?"
"I sent that e-mail to him hours ago!"
"I left a message yesterday, why won't he get back to me?"

We live in a new, faster world and we, as lawyers, are expected to keep up. Do not ignore these new expectations. So what are we supposed to do about this? I say take charge, and here is a start.

Educate your clients at the beginning of your relationship. I suggest making these points:

  • E-mail is not for emergencies. I check my e-mails twice a day.
  • I check in with my office, but if you leave me a message, it may take me some time to get back with you.
  • My cell phone is for emergencies…here is the number.
  • Although I carry my cell, I turn it off for meetings so it may take a bit of time to get back to you.
  • I will report only significant developments in your matter, there is no point in writing you every week, and charging you if there is nothing new to report.
  • Our normal procedure is to send you copies of all pleadings, if you would like us to do something different, please let us know.
  • What is your perferred form of communication, and is it secure?

Once you have educated your clients and tailored your mode of communication for them, it is up to you to live up to your commitments. This process will go a long way to preventing misunderstandings which give rise to complaints against you or your office when it comes to diligence, it will keep your clients satisfied, and it may even lead to more good paying work!

Posted on February 10, 2015 and filed under Attorney Grievance.