It's My Privilege

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by Candace Moody // from 904 Magazine, December 2014

Thomas Jefferson once wrote that a lawyer’s job was to “question everything, yield nothing, and talk by the hour.” Almost everyone engages an attorney at some point in his or her personal or professional life. It’s an arrangement that isn’t without issues.

One of the biggest challenges in attorney/client relationships is determining when it starts. Hope springs eternal, and many unsophisticated prospective clients claim a relationship after a single consultation. That’s why most attorneys prepare letters declining representation when they decide that a client is not a good fit for their practice. A relationship is not determined by the amount of time spent with an attorney either; a 10-minute phone conversation may be just as binding as a two-hour meeting. There is no five-second rule for clients, as some attorneys would contend; the final determination is whether the client believes he is getting legal advice from an expert.

Alan Howard has practiced corporate law for 30 years, specializing in mergers and acquisitions. He says that the key to a good relationship with your attorney is finding the right fit. “Your attorney should have specific experience with the kind of work you need, and a personality that makes you feel comfortable,” he says. “You also have to understand our role. It’s our job to present you options and the risks associated with them. But we can’t make decisions for you; you’ll have to decide what to do based on your own judgment.”

The Rules of Professional Conduct state: “In all professional functions a lawyer should be competent, prompt, and diligent.” There is, unfortunately, no code of conduct for clients. Attorney Kate Mesic, whose legal practice includes criminal defense, says that clients can make things harder for everyone when they withhold information. “Attorneys hate surprises,” she says, “and it’s especially hard when key issues or part of a story suddenly changes. I try to outline what I expect in my retainer agreement, but clients don’t always comply, especially in a criminal defense case, where the stakes are high.”

Social networks have been the downfall of many clients who seem to forget that Facebook posts are discoverable. For example, in 2011, the head of a private Florida school lost his $80,000 settlement with his employer after his 16-year old daughter posted a triumphant message about her father’s winning his case. “[The school] is now officially paying for my vacation to Europe this summer.” Perhaps the gratuitous “SUCK IT" was what drew so much attention from her 1,200 followers. Her father was successful in finding another job at another school, but we can presume the European vacation was cancelled.

As Tom Cruise said in A Few Good Men, “It doesn’t matter what I believe. It only matters what I can prove.” There may be times when an attorney has to guide a client away from righteous indignation back to practical implementation. Mesic says that clients sometimes want to press a lawsuit to prove their point, even after they’ve been advised that they don’t have a case. What do you do? Mesic says, “Sigh, and file. And cover yourself by putting your advice and recommendations in writing. When they blame you for losing the case, you can at least point to your email and say ‘I told you that was probably going to happen.’”

Billable hours often get in the way of a productive relationship. It can be very confusing for clients to figure out when they are on and off the clock, and most attorney billing is opaque. When clients are continually surprised by bills, they trust the process less and less; eventually, they begin to trust their attorney less and less. Alan Howard believes that no client should be surprised at the end of the month. “I copy my clients on emails and keep them in the loop on my activity,” he says. “If your only communication with your client all month is your bill, you’re going to have problems.”

Howard also takes the “prompt and diligent” directive seriously; he says no client should ever wait more than 24 hours for a return call.

Everyone agrees that good communication makes for a good relationship, but lawyers tend to speak a language all their own. The term “legalese” first appeared in 1914, describing the mash-up of 13th century French, Latin, terms like “ceteris paribus,” and tortured passive tense that makes up legal writing. Jean-Paul Boyd characterized it best in a 2013 publication on family law: "The problem with (legalese) is that while we can communicate with each other perfectly well, like Laplanders discussing reindeer, no one else knows what we're talking about."

That’s not to say that obscure legal terms can’t be helpful. I found one in my research that that may be useful at work in the near future: Ad impossibilia nemo tenetur. Translation: No one is required to perform the impossible.