Law Practice Essentials

Communicating with an SRP can be challenging. An SRP is personally invested in the matter and may lack objectivity or be sensitive to the brusque way in which lawyers often communicate. An SRP may also have little experience with the legal system or may have unrealistic expectations. For various reasons, the SRP’s recollection of what has occurred and their understanding of what will occur may be inaccurate. Despite your best intentions, an SRP may not trust you. On the other hand, an SRP may have the expectation that you will protect his or her interests. The following practices will help to ensure that you are fulfilling your duties, will assist in reducing the risk of misunderstandings, and may help with efficient resolution of the matter:

• When possible use plain language.
  
  
• As noted, Rule 7.2-12 of the Code of Conduct requires you to  advise the SRP to obtain independent legal advice, take care to see that the SRP is not proceeding under the impression that you will protect his or her interests, and make it clear that you are acting exclusively in the interests of your client. This information should be confirmed in writing at the outset of the matter and should be confirmed throughout the retainer, especially when the SRP is expected to make an important decision.   
  
  
• If you are retained on a limited scope retainer, you need to identify the issues for which you are retained and advise the SRP to communicate with you about only those issues. You will also need to identify those issues which your client is managing and where correspondence and service of documents regarding those issues should be directed. 
  
  
• If an SRP appears to be misunderstanding your role in the matter, or the matter is becoming difficult to manage, set some boundaries before matters escalate. This is particularly important if you sense that an SRP is communicating with you to drive up your client’s costs. Boundaries could include: 
  
• Confirming again with the SRP that you will not provide legal advice to them;
• Advising that you will not respond to communication that is not relevant to the legal issues in the matter;
• Clearly stating that you will not tolerate abusive or disrespectful communication;
• Advising when the SRP can expect a response to communications; and 
• Advising how you will manage multiple communications received from the SRP within a short timeframe. 
  
  
• You can minimize the time spent on this initial communication to the SRP, and the cost to your client, by preparing a precedent and copying the information that is applicable to the situation.
  
  
• No matter the situation, be civil and courteous in all communications with an SRP. If an SRP is acting inappropriately, do not respond in kind. Sometimes lawyers, intentionally or unintentionally, use language that is inflammatory. Such communication does not help to resolve the dispute, and in fact may escalate the situation and is a disservice to the client. The following are some strategies that you may find useful in contentious matters: 
• Take a break between the time you draft and send any correspondence. Reviewing correspondence after a short break can allow you to reflect on your choice of words and determine if any changes should be made.
• If in doubt, ask a colleague to review your correspondence and provide honest feedback as to whether you should consider any changes.
• Ask yourself if you would be embarrassed or worried if your correspondence was attached to a court pleading or submitted to the Law Society. 
  
  
• Ideally, all important communications, including negotiations, should be done in writing. Consider carefully whether a settlement meeting is worth the risk when you have no ability to prove what was, or was not, said. If you decide to engage in verbal communications, follow up in writing to the SRP to confirm any significant substantive or procedural agreements. This is not extra work if you are already reporting to your client. 
  
  
• If correspondence is being sent to the SRP on a “without prejudice” basis, consider using the term on each page of correspondence or in the header. You should also include a paragraph at the beginning of your correspondence defining what “without prejudice” means and confirming that the correspondence cannot be disclosed in court or arbitration until after the decision maker has made its decision, at which time it may be relevant for considering costs.
  
  
• Although you may be tempted to record conversations with an SRP to confirm what you discussed, you first need to inform the other party of your intention to do so (Rule 7.2-4 of the Code). If you intend to record the conversation, the SRP should be given the same opportunity. If the SRP refuses to engage in communications that are being recorded, consider ending the conversation and instead sending written correspondence to the party. Alternatively, you could choose to have a witness present during the conversation but ensure the SRP is aware the witness is present.