In the 1971 movie “A New Leaf,” Walter Matthau plays Henry Graham, an irresponsible playboy who suddenly finds that his once ample trust fund has been depleted. Lacking any meaningful skills, he schemes to marry a wealthy heiress who can support him in the lifestyle to which he has grown accustomed. In this scene, Henry’s lawyer, Mr. Beckett, delivers, in painstaking detail, the news about the state of Henry’s finances:
Beckett had it easy; his client was a jerk. But for most of us, it’s no fun delivering bad news to a client. Still, it’s a whole lot better than NOT delivering bad news. Or not delivering it (as Beckett did) in a sufficiently clear way so as to allow the client to fully understand the implications (as Henry, eventually, did).
Failing to properly communicate with clients is both a violation of the ethics rules and an oft-cited basis for malpractice claims. ABA Model Rule 1.4 requires lawyers to “keep the client reasonably informed about the status of the matter” and to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”
There are some easy steps you can take to ensure compliance with this rule: copy your clients on correspondence to adversaries and other third parties; send copies of any pleadings, motions, or court rulings; promptly return telephone calls and emails. There are a few more things to consider, though, when delivering bad news:
*Don’t sugarcoat it. Tell it like it is. I’d rather listen to a client get upset now than deal with a claim down the road that the client couldn’t make an informed decision about his or her case because I didn’t accurately convey something.
*Be clear on the options. Bad options are better than no options. They may not be good, but you’ll be happy you laid them out.
*Confirm advice in writing. Take all of the above and put it in a clear writing so there is no confusion.
And perhaps most important, make sure you deliver the news in a manner that the client can easily comprehend. As the below demonstrates, even Mr. Beckett’s advice needs to be modified for some audiences.