A Paralegal Goes to Law School - What We Have Here is a Failure to Communicate

Rule 4-1.4 of the Rules Regulating the Florida Bar reads as follows: 

RULE 4-1.4 COMMUNICATION 

(a)  Informing Client of Status of Representation.  A lawyer shall: 

(1)  promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in terminology, is required by these rules; 

(2)  reasonably consult with the client about the means by which the client’s objectives are to be accomplished; 

(3)  keep the client reasonably informed about the status of the matter; 

(4)  promptly comply with reasonable requests for information; and 

(5)  consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows or reasonably should know that the client expects assistance not permitted by the Rules of Professional Conduct or other law. 

(b)  Duty to Explain Matters to Client.  A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. 

"Yeah, cool Jen, we all took Professional Responsibility.  We know."  

OK, hear me out.  We know from the statistics issued by the Florida Bar each year that one of the top reasons attorneys get disciplined by the Bar is for this very reason: they have failed to communicate with their client.  

What I'm proposing is it might be a good idea to have some communication policies in place for your future firm or just yourself as you navigate whichever workspace you choose.   As my great-grandmother would say "an ounce of prevention is worth a pound of cure" or in my case "an ounce of prevention is worth less trips to the mental health professionals!".  Remember, that no matter if you go solo, join a firm, work corporate, or government; at the end of the day it is your bar license on the line and you want to have policies in place to prevent possible malpractice.  

So without further adieu I give you the things I have seen save other attorney's bacons when in the crosshairs of a Bar Complaint about poor communication: 

1. Communication Clause in Retainer Agreement 

    Yes, the Retainer Agreement.  You knew I was going to bring that up because this first agreement is the bedrock of your professional relationship with your client and dictates most, if not all the aspects of that relationship.  

    The firms I have worked for that have this ultimately have little to no bar complaints for poor communication because the communication manner and frequency is all spelled out in the retainer agreement.  

    Sure, you may still have someone report you to the bar but as long as you have that letter that was signed by you and the client and the evidence to back up that you adhered to your side of the agreement and that the agreement terms adhered to the standards set by the Florida Bar you have little cause for concern save the annoyance of having to deal with the Bar.  

Some things you may wish to address in this clause would be: 

• How are you going to send the client copies of their filed pleadings? 
• Will you send it to them by forwarding the service e-mail? 
• Will you provide them access to those filed copies via the Client Portal? 
• How long should client's expect to hear back from you when they call and leave a message? 
• How long should clients expect to get a response to an e-mail? 
• Your policies regarding after hours communications (ie. do you answer e-mails on the weekends or the evenings or is this an only if there is an emergent need).  

2. Good Record Keeping of All Communications

You want something that will save or memorialize the communication and you want to have a record of when that communication was received and sent.  You want to have a method that is easy to use, fits your budget, and is reliable.  Below is a list of methods I've seen used successfully.   

a. Client Portal 

 One of the amazing things about having a cloud based case management system is that most come with client portals that your client can log into to receive things like: 

• (1) Copies of all filed documents; 
• (2) Secure Messages from Attorneys and Staff; 
• (3) Invoices (as well as the means to pay said invoice with scheduled reminders);  
• (4) Appointment Reminders; 
• (5) Intake Forms; and 
• (6) Texting Capabilities (Some CMS companies have this but some allow you to connect whatever VOIP texting service you use via an API.)

    As you can see I'm kind of a fan girl for this stuff because it really does automate a lot of the communications sent AND keeps record of it instantly.  It also lets you know if your client has logged in to access something you sent them or not.  If not, you may want to have your staff contact the client to verify the e-mail address connected to the file and also reminding the client that this was the primary means the firm uses to communicate with the client as outlined in the retainer agreement.  

b. Mail Logs (because I'm 95).

Yes, I know, I am proposing you log what mail you send and receive.  I know, it's 2024 and this antiquated idea is quickly falling out of favor but hear me out.  If you do not have a CMS with a system already in place or at the very least an online postal provider, you absolutely need to have a meaningful and easy way to provide records of incoming and outgoing mail.

This can be accomplished two ways: the first being an excel document and the second being tagging scanned documents outgoing and received by the firm.  

i. Excel Method

   1) Make a spreadsheet for each file saved under that file and title it Mail Log or you can make on spreadsheet in a shared firm file and have a column notating the file the mail is regarding. 

        2) Title the Columns as follows: 

• Date
• Matter/Case - if a Shared Firm File 
• Mail Method ie USPS, UPS, FEDEX, Hand Delivery, DHL (this is good to                                    stick in a dropbox cell for easier saving or report creation later.)
• Incoming/Outgoing - (again, another good column for a dropbox cell). 
• Sender/Recipient Name 
• Address 
• City
• State 
• Zip
• Tracking (if applicable)  

3) Then whoever opens the mail makes a record for each piece of mail received. 

        ii. Electronic Document Method 

     1. File Folder Method

 If you have a CMS or even if you are just using Microsoft 365, you will have the ability to make subfolders.  You can create one subfolder for incoming mail and one subfolder for outgoing mail and save the scanned copies of the correspondence being sure the day it was received or sent as a prefix for the document (makes sorting easier) or if you are using a CMS you can set the date to the date it was received. 

        2. Tagging Method 

     1) Microsoft OneDrive allows you to tag documents with those little colored flags that you designate to mean certain things such as "incoming mail", "outgoing mail", "pleadings".  

2) I personally like using this method better because certain documents can fall into many categories.  For instance if I get a bank statement I'm going to tag it "incoming mail" "bank statement" and "accounting" as this one document pertains to all three of those categories.  

3) This makes it easier to filter by flag when I'm looking for a specific document but can't remember the name or maybe I just want to see a listing of all the "pleadings" that are in a specific case.

4) There are several CMS's that also have this tagging feature (MyCase being one of them) and it follows the same principles. 

  c. Bonus Points - Online Postage 

    I use Stamps.com which I find to be reliable and easy to use but the thing I love about it the most is        the fact that all the mail I send out will be recorded.  I still tag my documents but it's nice to have this     backup in case of human error.   

3. Phone/Meeting Notes and Follow-up

a. Take Good Notes - For the love of all that is good and holy take good notes whenever you speak with your client whether it be during or directly after your meeting.  Prof. Bassett was absolutely spot on about making sure you take good notes.  

b. What are good notes?  You want to be able to answer these questions: 

i. What was the date and time - Approx how long 

ii. Name of Client - Matter 

iii. Was this in-person/phone/zoom?

iv. What questions did the client have?

v. What answers were given to the client? (or will you get back to them with an answer?)

vi. Any outstanding questions or issues that need to be addressed? 

c. Send a follow-up e-mail outlining the conversation

i. This helps in two ways - it memorializes the conversation and it also gives the recipient a chance to clarify the issue if you don't quite have it right.   

ii. Example: 

Mr. Smith, 

    Thanks for taking the time to speak with me this morning about the closure of your mother's estate.  As I explained, we are still waiting for the tax firm to complete the 706 Federal Estate Tax return as well as the 1041 Federal Estate Income Tax return.  It is our understanding the accountant will have this completed by August 1, 2024.   Once we receive notice of the return's completion we will let you know so we can finish the estate final accounting and petition for discharge.  

We appreciate the update regarding your getting the beneficiary's social security numbers and we look forward to receiving them from you by the end of the next week as discussed.  Prompt delivery of this information will expedite the completion of the estate tax returns.

Lastly, just as a reminder and as we discussed, no assets may be distributed until the tax returns are filed and accepted by the IRS. Our office will let you know when the returns have been accepted.  

Should you have any questions, please feel free to contact our office.    

Sincerely, 

Attorney X 

iii.     This outlines the conversation so that Mr. Smith has a chance to set the record straight if Attorney X has it wrong as well as memorializing the conversation for future reference. 

4. Saving E-mails

a. If you use a CMS, there will be a feature that allows you to save e-mails directly to the file.  Be sure to use it well and use it consistently.  

b. If you do not have a CMS, you can save your e-mails to separate folders for each case while working the case and when you are done working the case those folders can then be archived in OneDrive.  

These are just suggestions from what I've seen others use successfully but the bottom line is this: if you get called into the hot seat by the bar, you want make sure that (a) you have a written and agreed to retainer agreement with the client outlining the communication expectations for both parties and (b) an easy to use, efficient, and reliable means of keeping records of all communications with clients.