Top complaint against lawyers is rude or uncivil behaviour
Increased use of email a factor, but not the only one
It’s a common mistake.
You receive an email. You’re in a hurry. You don’t think about your language. You want to get it off your plate.
At some point, maybe even right after you push send, regret sets in and you wish you’d taken more time to craft your response. Just about everybody who uses email frequently has been there, but when the sender is a lawyer and the recipient is a client or opposing counsel, the repercussions of a hasty email may be greater than regret.
Neil Hain sees it far too frequently.
“The tone and tenor of the email is disrespectful, and it’s in writing. Rude or discourteous behaviour from a lawyer is the most common type of conduct about which people complain to the Law Society.”
Hain and colleague Carolyn Anderson are two of the Law Society’s staff lawyers responsible for intake and early resolution of complaints made against lawyers. They have noticed an increasing trend of rudeness complaints in relation to email.
“People are used to the immediacy of email and social media such as Twitter, and they get used to just quickly sending off an email without clearly thinking about things,” said Anderson. “And not only is that bad from a negligence perspective, because, for instance, you might not be giving complete advice, you tend to use language that you wouldn’t use in a letter. When I read these emails, it’s hard to believe that they’re from a lawyer. That’s how unprofessional they can be.”
It involves using unprofessional rhetoric, language that’s inappropriate and language that you might write to a friend or a buddy, as opposed to a client or opposing counsel.
Anderson’s advice to lawyers she speaks to is, “if you wouldn’t write it in a letter, you ought not to put it in an email. It’s a good reminder for all lawyers to watch out for quick emails. You might think it’s funny and cute, but when I’m reading it a year later it reads as unprofessional comments about someone. It’s not funny and it makes you look bad.”
“Quite often,” added Hain, “when we get on the phone to the lawyer to notify them of the complaint and they read the email again, they completely agree that it was unprofessional.”
Anderson said she has had to tell several lawyers that they could have avoided any professional conduct concerns by being proactive about polite, professional behaviour.
Maureen Boyd, who is the manager of discipline for the Law Society, has seen many other examples of complaints that could have been avoided.
“Disciplinary action has been taken in Canada against lawyers who, for example, called opposing counsel ‘clueless.’ Another lawyer advised opposing counsel to take a settlement offer and shove it, including a graphic description of the intended location. And in written correspondence one lawyer said to another, ‘I don’t have time to read two-page rambling letters. Say what you want to say in a single sentence unless you are paid by the word.’”
“Lawyers are well advised to keep civility at the forefront of their dealings, not just in email, and to recognize when emotions of anger or frustration are present and avoid communicating until those feelings have resolved,” added Boyd.
It may sound like a small thing to some when considered with everything else required to run a busy practice. But incivility brings the profession into disrepute and lawyers who fail to exercise professional courtesy have faced disciplinary action. It’s important to always be mindful of professional responsibility.
Lawyer Leslie Muir has written and lectured for the Canadian Bar Association, Continuing Legal Education and the Trial Lawyers Association of BC on professional responsibility issues.
Muir, who was called in 1983, got interested in professional responsibility early on in her practice. She was involved in the Inns of Court program, which was founded in 1984 and gives junior barristers an opportunity to discuss practical and professional issues with the judiciary and senior lawyers. Muir was greatly influenced by the then Chief Justice of the BC Supreme Court, Alan McEachern.
“He firmly believed that professionalism was fundamental to the practice of law and focused a lot on professional relations, professional responsibility issues and civility in litigation. Later in my career I spent some time with the Lawyers Insurance Fund as claims counsel and since then, am occasionally retained by them as defence counsel. Being involved in cases against lawyers has reinforced for me the importance of close attention to our professional obligations.”
Muir has also noticed the recent impact of email on professional obligations, and particularly on managing client expectations.
“Many more people expect instant results, instant responses and demand instant opinions. Many people say things in text messages and emails that they will, or at least should, regret. I do not allow these types of expectations to prevent me from fully considering the facts and the law prior to giving advice or taking steps. And I tell lawyers at my lectures that if you do, it is at your peril.”
Hain believes many of the problems around email are connected to client expectations that could have been managed at the outset with a retainer that includes a communication protocol.
“A lawyer, for example, might feel that they’re getting inundated with email requests from the client and they’re getting fed up. So either they ignore the client or they give a bit of a snippy response saying, you know, ‘cool your jets.’ They could use a paragraph in their retainer agreements talking about a communication protocol where they’re discussing things such as email, phone calls, how reporting is going to be done and what is reasonable in terms of response times.
“Then if there is a breakdown in communications, the lawyer can take out the retainer and use it as a basis to discuss the concerns of each party so that these kinds of communication issues don’t fester and build resentment for the client, who may then have a lingering feeling of having been ignored.”
Anderson will often refer people to the Fall 2009 Insurance Issues: Risk Management, entitled Email: Preventing a mailstrom, to assist them with dealing with their email.
“In the last year and a half I’ve had to direct about 60 lawyers to the article on our website. Five years ago, most rudeness complaints were about things that were said in conversation. There’s no doubt that email is requiring more attention from lawyers, but the basic standards for lawyers’ behaviour haven’t changed for email or otherwise.”
The Canons of Legal Ethics require lawyers to be candid and courteous in relations and demonstrate personal integrity.
“Lawyers are required to know their obligations under the Professional Conduct Handbook,” added Boyd. “Our goal with the new Discipline Alerts is to help lawyers be aware of potential problems so that they avoid conduct that may result in complaints or disciplinary action. If lawyers have questions or concerns about their professional obligations, we encourage them to contact one of our practice advisers. That or other proactive behaviour on the part of lawyers may help to ensure that the next Law Society communication isn’t notification of a complaint.”
The appropriate time to contact a practice advisor for help is before a complaint is made. All communications between practice advisors and lawyers is strictly confidential, except in cases of trust fund shortages.
In every issue of the Benchers’ Bulletin, Practice Advisor Barbara Buchanan alerts lawyers to issues facing the profession, with a focus on preventing potential problems. Often she will write on topics brought up by lawyers who contact her.
Discipline Digest and Conduct Review summaries
The Benchers’ Bulletin contains summaries of cases where lawyers have been disciplined; these summaries shed light on the types of behaviour that stray from the standard of professional conduct lawyers are required to meet.
Risk management articles
The Lawyers Insurance Fund has a number of articles on managing risk, including an article, entitled Email: Preventing a mailstrom, designed to assist lawyers with appropriate management of their email.
The Law Society’s newest educational tool is intended to increase awareness of conduct that leads to complaints. See page 15 for details.
The Law Society has always tried to help lawyers maintain high standards of professional conduct. It is now adding one more tool to its resources for lawyers by launching Discipline Alerts.
“The idea behind the new Alerts is to provide lawyers with information so they can avoid conduct that leads to complaints,” said Deborah Armour, the Chief Legal Officer for the Law Society.
Alerts are published to the Law Society website regularly and are available via RSS feed. All lawyers will also receive notice of any new alerts in E-brief, and the Benchers’ Bulletin.
“One of our goals is to help the public receive high quality legal services from their lawyers,” added Armour. “We’ve seen many cases where lawyers felt they went above and beyond for their clients to get excellent legal results and then were extremely surprised when a client made a complaint to us. What we’ve often found when we looked into it was that the clients felt their lawyers didn’t treat them with courtesy. That’s an example of complaints that could easily be avoided.”
The first Discipline Alert can be found in the practice section of this issue of the Benchers’ Bulletin.