Lawyers Advise: Clients Decide

It is your job as an attorney to help your clients make smart choices.  As much as you would like to, though, you cannot make those choices for them.  You will inevitably run into clients who ignore your best advice and do things you wish they would not do.  And when your worst predictions come true, all too often clients forget that you were the voice of reason.  When your instincts tell you that your client is about to make a choice he will live to regret, they should also tell you to start typing.  Clear documentation of your advice and your client’s response can mean the difference between a long, costly malpractice suit and one that never gets filed at all.

The legal malpractice dockets are full of lawyers who wish they had been more prolific in their written communications.  Take for example a law firm defending a company that has been sued by a former employee.  The employee has made a short-money settlement demand in the hope of avoiding the cost and delay of litigation.  The firm, recognizing clear-cut liability, recommends accepting the demand.  The company, however, is focused on its developing business and refuses to concede to the problems of the past.  It questions whether the firm is really committed to its case.

Perhaps concerned about provoking its client, the firm does not reduce its advice to writing.  When the inevitable plaintiff’s verdict comes down, however, for many times the employee’s initial demand, the company sues the firm.  It claims the firm should have pushed settlement harder.  With no clear documentation that the firm advocated settlement all along, it can only hope that its lawyers are more credible than the company’s witnesses.

Or take instead a lawyer whose client is buying a house with cloudy title.  He advises his client of the consequences of proceeding with the purchase, but the client has put his previous home under contract and needs a place to live.  He decides to roll the dice and buy the new home before the title situation is resolved.  The lawyer urges his client to reconsider, but with a tight closing timeline never commits this advice to writing.  When the client later becomes involved in litigation over the title issue, he sues his lawyer for the costs.  Although the lawyer advised his client properly and the client understood the risks he was taking, there is no documentation to prove it.

In both instances, the lawyers would be well-served by clear written evidence of the advice they provided.  The trick, of course, is to document your advice and your client’s departure from it without disrupting the trust and good faith that you and your client have developed.  This can be sensitive territory and there is often no good way to approach it.  Clients do not always react favorably when you set down the problems with their case in black and white. They may perceive bad news as a lack of dedication to their cause or a failure of confidence on your part.  A savvy client might detect the thread of self-preservation in your message and wonder whose interests you have at heart.

To avoid provoking a negative response, it is best to maintain the tone you have set throughout your representation.  If you and your client have a close relationship and correspond casually, do not let your language become lawyerly and stilted.  If your emails are always measured and formal, be careful not to sound too aggressive or blunt.  A shift in tone can set off warning bells.  At the same time, however, you must resist the urge to soften your message by downplaying the disparities between your advice and your client’s decision.  Your email needs to demonstrate clearly that you gave your client the right advice and he understood it but decided on a different course.  The goal is that when your client (or his malpractice counsel) picks up the email years from now, he will know right away that he ignored your advice at his peril.