Clarity is Key
May 5, 2014
As lawyers, we like to think we excel in communicating our thoughts, ideas and arguments to others. Yet sometimes, we forget that it is important to be direct, concise, and clear when describing ourselves in advertising, when communicating with potential clients, and when communicating with clients. Here are some ways lack of clarity can get you in trouble:
Violation of Advertising Rules
If we are not precise when describing ourselves, our experience, or our services in advertising, we may run afoul of the advertising rules. For example, many attorneys advertise, “You pay no fee unless you recover.” The intent may be to say that you do not pay an attorney fee, but you may still be responsible for costs. The problem here is that “fee” is undefined, and the average client is not going to understand that they still may be responsible for costs even if they lose their case. 2004 FEO 8 requires that an attorney say “no attorney fee unless you recover” so that it is clear. Keep in mind that certain other statements, such as any statement about results, must include appropriate and conspicuous disclaimer language as well.
The Accidental Client
Suppose you regularly represent a corporation, but on some occasions, the officers come to you with legal questions, and you provide answers. Or suppose someone asks you a legal question, on-line through social media, and you provide a general response. In either situation, you likely have created an attorney client relationship. I would recommend not undertaking to provide legal advice to anyone under any circumstances unless you are prepared to engage in an attorney-client relationship. Even if you don’t provide specific advice, the person who is consulting with you may believe that you are their attorney. If you accidentally create an attorney-client relationship, keep in mind that you owe that person duties under the Rules, including confidentiality, loyalty and communication. You may also inadvertently conflict yourself out of a matter or raise liability issues if you are not vigilant.
A confused client is more likely to file a grievance against his or her attorney. Make sure you clearly define the scope of representation and fee for services. If you charge a flat fee just to prepare a simple will, make sure the client understands that additional legal documents will be extra. Be clear about how your fee is determined and when payment is due. If you are not retained until paid, then say so. In addition, a contingent fee agreement must be in writing and must also include an explanation about how the fee will be calculated. Rule 1.5. Also, let your client know when the relationship has terminated. If the client only paid you for a consultation, but did not ultimately retain you to represent them, make sure they understand (1) you do not represent them, (2) they need to consult with other counsel, and (3) when the statute of limitations runs.
As always, we recommend that you put everything in writing when possible. Even a confirming e-mail is better than nothing. And remember, clarity is key.