The rules in the Code of Conduct are the minimum standard by which you should practise. Satisfying these rules does not necessarily make you an effective communicator - that can only be accomplished with diligent attention and mindful acknowledgement of interpersonal relationships. Consider how the following communication problems could be addressed or avoided in your practice.
Failure to Respond Promptly (or at all)
The most common communication problem is lawyers who either delay responding to communications or fail to communicate altogether. An excuse for failing to respond only serves as an explanation for why the lawyer failed to communicate but does not excuse the failure. There is no excuse to not return communications within a reasonable time or within the timelines you promised someone. Be aware of all incoming communications that require your professional attention and maintain records as to how each was addressed.
Other Lawyers’ Behaviour
If you practise law, sooner or later you will likely run into a lawyer who gets under your skin. Lawyers have different styles and when another lawyer’s style is vastly different than your own, it may be hard to understand. Some lawyers may seem overly aggressive while others may seem passive, disorganized or unresponsive. Oftentimes conflicts are due to misunderstandings and can be resolved through clarifying communication.
Remember the Code requires you to communicate appropriately regardless of anyone else's lapse of communication. Do not let another lawyer’s communication style dictate how you practice law. You can manage your relationship with these lawyers using many of the tools for dealing with clients. Your professional obligations require you to respond with reasonable promptness to communications from other lawyers that require an answer and be punctual in fulfilling all commitments (Rule 7.2-7 of the Code). As with clients, think before you respond and stick to essential information in formulating your response. While you should document all communication with other lawyers, it is particularly important to document communications with lawyers who you find difficult and to maintain civility in your own communications.
If confronted with communications you consider improper or offensive, craft a response and then wait before responding. The amount of time to wait will depend on the urgency of the need to respond. Think about whether you would be embarrassed if the court, Law Society, or a senior lawyer you respected saw your response. Try to review the response objectively and edit as required. Your tone should be civil and the content to the point. You may find it helpful to ask a colleague to provide feedback on your draft response.
Depending on the circumstances, it may be appropriate to advise the other lawyer that you think their communications are improper and that you expect to be treated with civility and professional courtesy. Consider whether this is likely to improve communications going forward. If the difficult communications persist, you may choose to advise them that future dealings will only be by way of correspondence. Be mindful that recording a conversation between you and another lawyer, or between you and your client, even if lawful, is prohibited unless you have first informed the person of your intention to record the conversation (Rule 7.2-4 of the Code).
Inappropriate Tone and Content
Civility in communications is an essential skill to understand and practice. The content of your communication is as important as the tone. Don’t clutter your communications with superfluous statements, stick to essential and clear information. Only make statements that are objectively defensible and necessary.
A lawyer must not, in the course of a professional practice, send correspondence or otherwise communicate to a client, another lawyer or any other person in a manner that is abusive, offensive, or otherwise inconsistent with the proper tone of a professional communication from a lawyer (Rule 7.2-6 of the Code).
Be precise and try to avoid ambiguous communications. If you think your communications have been misunderstood, take the time to clarify prior communications to ensure there is no misunderstanding. As long as you are reasonable, your audience should appreciate your efforts to ensure clarity in the face of a potential misunderstanding. The key is to keep communications on point.
Failing to Stay Objective
Most people hire lawyers when they need help with a significant issue in their life. The legal matter will usually have a monetary impact on the client, but it can also involve important personal and property rights. In some circumstances, particularly in family law, the client is faced with a very emotional situation. Such a client will often be seeking your advice when they cannot see their situation objectively, and sometimes when they are particularly vulnerable. The fiduciary nature of the lawyer-client relationship, and the trust obligations that arise from that relationship, require that you maintain your objectivity.
While it is appropriate to understand and respect your client’s emotional state, it is inappropriate to mimic it. You have a duty to provide objective, disinterested professional advice to your clients (see Commentary [2] to Rule 3.2-3 of the Code). Your client is entitled to feel the way they feel and to be governed by emotion. You are not. Effective communication skills can help mitigate some of the risks of dealing with emotional clients. Your client has hired a lawyer, and if the client is operating under a misapprehension of what they can expect from you, it is imperative that you disabuse them of any notion that you are a mere mouthpiece for their displeasure. Managing your client’s expectations may require you to be firm and upfront about the services you will provide, and your obligation to provide those services in a civil and professional manner. In a matter that might proceed to litigation, it is particularly important to let the client know that the way client and counsel conduct themselves can affect the outcome, including cost awards. It is also important to let your client know that as a professional and as an officer of the court, you are required to adhere to the Code.
Below are several benefits to ensuring your clients understand that, while you are empathetic to their situation, you are required to provide them with objective advice. This is because:
- Being objective and not over-identifying with your client allows you to apply your legal skills with reasoned action, rather than by impulsive reaction. This increases the likelihood of obtaining a favourable result.
- By not over-identifying with the client, you are less likely to personalize the legal matter. Lawyers who personalize matters are more prone to engage in communications that offend the opposing party or counsel. In addition to being unprofessional, personal attacks and observations can lead to complaints.
- In circumstances where you give your client free rein to dictate the way you communicate, you become a puppet rather than an advocate for their rights. When matters conclude, it is not uncommon for the emotional client to remain unsatisfied and complain that you failed to serve them in a conscientious and diligent manner. Lawyers who over-identify with their clients often set themselves up for censure.
Inappropriate Affidavits
Restrict the content of affidavits to statements the deponent can swear or affirm to be true, and that are necessary to deal with the legal issue. Language in affidavits must be civil and factual. Peppering affidavits with personal attacks and inflammatory language is a misguided approach.
Some areas of practice can lend themselves to inappropriate content in affidavits. Clients can be emotional, and lawyers sometimes fail to serve those clients in a professional manner. An affidavit is not a vehicle to spit venom in the most objectionable manner that you or your client can conjure. In addition, certain legal disputes require the parties to have some form of enduring relationship and using improper language in an affidavit can harm that relationship. If your client requires continued contact with their ex-partner through parenting, exacerbating the situation through inflammatory language is not in the best interest of the children, your client, or society. Your client does not have the right to demand that you produce uncivil affidavits and place them before the court. If your client is engaging in this sort of behaviour and you need help determining how to proceed, call a Practice Advisor for guidance.
Inappropriate Demand Letters
A demand letter should be firm and direct, but polite. Allow for reasonable accommodations and explain to your client the value of reasonable accommodation. Never abuse a reasonable accommodation you have been extended, nor jeopardize your client’s position by allowing the other party or counsel to abuse a reasonable accommodation you have granted. Don’t editorialize or stray off point in a demand letter.
Breaching Undertakings
When you are retained on matters that require undertakings, educate your client about their purpose and the relevant rules. It is important to let your client know that once you have accepted an undertaking, you cannot breach it, even on instructions from your client.
Don’t insist on undertakings where a lesser form of promise will suffice. When undertakings are required, ensure you comply with Rule 7.2-14 of the Code.
Issues when Appearing as Counsel
Take the time to ensure your client understands how the adversarial process works. Your client may have preconceived and perhaps misguided notions about litigation. You are inviting complaints if you do not take the time to educate your client and keep them well informed about how the court process works, how settlement operates within the system, alternative dispute resolution options, and the issue of costs.
Your client must understand that litigation involves risk, and even if the client believes the cause is just, the result might not be to their liking. Your client should also be aware that litigation is costly, and there is a risk that they may have to pay costs. Take the time to explain the concept of cost awards. If your client is pushing you to behave unprofessionally, remind your client about cost sanctions as well as special costs.
It may be that the best course of action will be for the client to settle the case. Since most filed cases settle, explain to your client why cases settle and have a frank discussion about why and when settlement is desirable. This conversation is a natural fit with a discussion about costs. You can also tell your client about your obligation to encourage settlement of a dispute whenever it is possible to do so on a reasonable basis, and to discourage continuing useless legal proceedings (Rule 3.2-10 of the Code). When engaged in litigation you need to be alert to your professional obligations to the client, the court and other lawyers. Educating your client about the litigation process is important for managing your client’s expectations. Taking the time to explain the ground rules allows the client to understand why you are conducting matters in a certain fashion and lets them know what to expect. Something as simple as the client misunderstanding why you bow to the judge or refer to the opposing lawyer as “my learned friend” can create problems.
Your client needs to understand the court’s role. A client might believe the job of the judge is to pronounce the result the client desires. Another client, perhaps for cultural reasons, might not understand the role of a judge in Canada. Take the time to demystify the process by explaining the role and powers of a judge in general, and in the client’s context in particular.
Some clients need to understand that a judge has the jurisdiction to govern conduct before the court, including contempt and conflicts of interest before the court. Your client also needs to understand that the duty to act fairly and honourably extends to proceedings before administrative tribunals, even though proceedings are less formal than courts.
Communicating in Court
In addition to your duties under the Code, here are some simple rules for communicating professionally in court:
- unless you are physically unable, stand when you are addressing the court;
- stay seated when opposing counsel is addressing the court;
- if you have an objection, rise, state the objection, then sit down;
- communications between counsel should be directed to the judge; it is bad form to turn to opposing counsel and engage in a conversation; and
- don’t make personal attacks against the other side.