Talk Less. Smile More.

Aaron Burr’s counterintuitive advice to a young Alexander in “Hamilton” might seem equally ill-fitting for lawyers. After all, a lack of communication with clients is often cited as one of the primary drivers of ethics complaints, if not lawyer discipline. But there are situations in which an impulse to communicate can set a lawyer on an equally perilous path to discipline.

Many of these problems are borne of lawyers being very busy, multi-tasking, or emotionally wrapped up in their cases. An unspoken social pressure has developed to respond immediately to communications, whether they arrive by email, text message, Slack, or social media. Furthering the compulsion, we have learned to instantly express our love, anger, surprise, happiness, or approval with very little reflection. Ivan Pavlov would “love” it. 

I see this manifest itself amongst lawyers in several detrimental ways. I have represented clients who, upon receiving an email from me about a routine update, will call my office phone, then my cell phone, then text me, and then send me an email, all within the course of several minutes. That’s not diligence, it’s anxiety.

Certainly, there are times when it is important to respond quickly to a message. But there is no ethical requirement to respond in milliseconds. For a client communication, responding within a day will almost always be acceptable; it is unlikely that taking several days to respond will violate a rule. As for opposing counsel, in many situations there is no obligation to respond at all, as long as the failure to respond does not unreasonably delay litigation or prejudice the client’s interests in moving the matter forward. 

Responses that are dashed-off tend to be brief, sometimes to the point of being incomprehensible. They typically lack structure. The shorter the communication, the more likely it is that the recipient will misinterpret the tone, inferring irritation, frustration, anger, or apathy contrary to the writer’s intent. In a sense, these writings are the opposite of communication because the message obscures the information that the writer intended to convey.

Here are few situations in which lawyers would be well-served to talk a little less: 

The Accusatory Email from a Client
Either you did not get it done fast enough, you charged too much for it, or you never told them it was going to happen. Whatever the client’s strife, you will not necessarily make it better by responding quickly, let alone defensively. The client is amped-up; your too-quick response may escalate the client’s emotions. Angry, accusatory email threads look ugly attached to an ethics complaint. A carefully thought-out email later in the day, or the next day, may reach a calmer client and help deescalate the situation. 

The Nasty Gram from Opposing Counsel
Here’s a novel rule of thumb: the snider the email from opposing counsel, the longer you should take to respond to it. Not to “punish” the other lawyer but to take the time to calm yourself down, be thoughtful, avoid taking bait, and limit your response to only what truly requires a response. Someday maybe a robot will analyze these emails and prevent you from responding for a period of time. Until then, let it mellow a while. 

Talking to Unrepresented Parties
When communicating with a pro se opposing party, choose your words carefully. For example, many lawyers will start a letter with “I am writing to advise you” when what they mean is that they want to provide the party with notice of some event or action. A lawyer received a private admonition for a conflict of interest because some poorly worded emails to a pro se party in a transactional matter were later construed to have created an attorney-client relationship between the lawyer and that party. 

If you want to talk more, remember to remind pro se parties, friends and relatives of clients, witnesses, etc., that you are not their lawyer and that you cannot give them legal advice other than the advice to consult with a lawyer of their own. A lawyer may create an attorney-client relationship by drafting a document for someone, in which case a disclaimer may not undo what should not have been done in the first place. 

Responding to Online Reviews
The discipline system isn’t good enough for some disgruntled clients. They take their grievances to the gritty streets of Google My Business and other online fora. Don’t be tempted to respond with your own version of the “Reynolds Pamphlet.” The Lawyers Professional Responsibility Board issued Opinion 24 in 2017, which essentially prohibits a lawyer from trying to bleach the stain on their good name by revealing confidential information about what really happened in the representation. I don’t agree with it, but unless you want to be a test case, keep any response brief and limited to apologetic platitudes. 

Responding to Ethics Complaints
Some lawyers respond to ethics complaints with a narrative that makes Bleak House look like a novella. Others attack the complainant or throw in every possible argument against a rule violation, some of which do more harm than good down the road. Slow down, step away from the keyboard, consider your response, then reconsider it. Ask a colleague to review it. 

Talk less. Smiling more in these situations couldn’t hurt either.

By Eric T. Cooperstein
etc@ethicsmaven.com
Eric T. Cooperstein, the “Ethics Maven,” defends lawyers and judges against ethics complaints, provides lawyers with advice and expert opinions, and represents lawyers in fee disputes and law firm break-ups.