How can lawyers be sure clients understand what they’re saying?
Jenny Bradley, owner of Triangle Smart Divorce in Cary, North Carolina, says lawyers can miss some important clues that their clients are struggling to understand the advice they are getting.
One sign that clients aren’t getting it is when they nod repeatedly but ask no questions. Another is when they stop taking notes. Other body language signs include leaning back and crossing their arms or staring at one spot instead of making eye contact, she says.
Another “big red flag is urgency without clarity,” Bradley says, such as when clients start saying they don’t care anymore; they just want it all over to be over.
Under the ABA Model Rules, lawyers have a duty to make sure their clients truly understand their situation and options, says Jennifer Z. Belveal, a retired Foley & Lardner partner who led the firm’s Government Enforcement Defense & Investigations practice group in Detroit and served as an internal ethics adviser at the firm. That means be on the lookout for signs they are confused, she says.
“Legal advice is completely meaningless if a client can’t understand it,” says Belveal, who teaches business ethics and white-collar crime as an adjunct at the University of Michigan Law School.
ABA Model Rule 1.4 requires lawyers to keep clients promptly informed and “reasonably consult” with clients about how to achieve their objectives and about the status of their case. Rule 1.4(b) specifically requires that lawyers explain issues to the extent “reasonably necessary” for clients to make informed decisions.
The model rule also requires lawyers to respond promptly to clients’ questions.
Belveal says that there’s always the chance of “miscommunication” with clients. Sometimes, she says, it’s an easy fix of explaining again and redirecting their attention. Other times, it takes more patience, especially if the advice or topic is complex.
“If you are concerned that a client doesn’t understand, repeat the information in multiple ways and then ask the client questions to make sure they do,” Belveal says.
Unrealistic expectations
Kristin Gerdy Kyle is a law professor and director of the Rex E. Lee Advocacy Program at J. Reuben Clark Law School at Brigham Young University. She says that a clue that clients aren’t really understanding advice is when they keep repeating unrealistic expectations.
“If I’ve spent an hour explaining the significant risks and low probability of success at trial, and the client still talks as if a win is a sure thing, it’s clear the most important parts of the conversation haven’t landed,” Kyle says.
One important way to help client communication and keep a record is to always put advice in writing, Belveal says. She suggests lawyers discuss options first, then provide the information in writing and then follow up with another conversation. At that point, clients often have had time to think over the advice and focus on the parts they still don’t comprehend.
Belveal adds that in criminal cases, it’s important not to shock clients if your advice is that they should plead guilty.
“That kind of advice should definitely start with a discussion spelling out options,” Belveal says.
Jeanne Sockle, managing partner of Morris-Sockle, a family law firm in Olympia, Washington, points out that clients “can be a little intimidated by attorneys” and may “speak more candidly” about what they don’t understand with paralegals or other support staff.
She emphasizes the importance of support staff relaying back to the attorneys when clients appear to be confused or in crisis.
Decision-making limitations
Lawyers also should be on the lookout for any signs that a client has decision-making limitations, Belveal says.
ABA Model Rule 1.14 states that lawyers must maintain a normal client relationship with clients who have decision-making limitations, taking “reasonably necessary protective action” if needed. Protective action can include the appointment of a guardian ad litem, conservator or guardian.
There is, however, a gray area when a lawyer has an elderly client, a client for whom English is a second language or a client who has had little experience with the legal process, Sockle says.
In these cases, she adds, it might be in the client’s best interest to have a trusted friend or family member helping with the conversation.
However, Sockle points out, the assistance needs to be weighed against the importance of maintaining confidentiality.
In 2021, the ABA Standing Committee on Ethics and Professional Responsibility released a formal opinion to guide lawyers when faced with communication challenges posed by language differences or health conditions. The opinion establishes that lawyers have an affirmative duty to “take measures to establish a reasonably effective mode of communication.”
The opinion further explains that, when “reasonably necessary,” lawyers should arrange for interpreters or translators capable of understanding and explaining legal concepts.
A lawyer can’t “passively leave the decision to the client or thrust the responsibility to make arrangements for interpretation or translation entirely upon the client,” the opinion states.
‘Too overwhelmed to absorb’
Theda Snyder, a recently retired Los Angeles-based attorney and mediator, says lawyers tend to use jargon or arcane words that can be confusing to a client.
Snyder describes being in a meeting where she used the word “dearth,” assuming everyone else would know what it meant. Not everyone did.
“It was a reminder to use simple words,” says Snyder, who has written several books published by the ABA.
Bradley says she’s encountered clients who were “too overwhelmed to absorb” information and cautions that a lack of understanding is “almost never about intelligence; it’s about being in crisis.”
In one situation, Bradley’s client, a white-collar professional exploring options around a house buyout, showed outward signs of confusion, but, Bradley says, “it was really information overload combined with stress.”
When Bradley realizes that a client is struggling with information, she’ll shift her approach.
She also uses the Predictive Index Behavioral Assessment on clients beforehand so that she has insight ahead of time into how they process information and make decisions. The assessment is an oft-used cognitive assessment tool that measures an individual’s behavioral drives. Individuals taking the quick survey choose adjectives to describe themselves, which are then evaluated for dominance, extroversion, patience and formality.
Sometimes, she says, that means drawing out the choices on a whiteboard, while sometimes it means giving a written summary for clients to take home and “digest on their own time.”
It also may be helpful to break down the decision into “much smaller pieces.” It’s important, she says, to “slow everything down.”
Bradley points out that clients need to feel supported and like they fully understood their options, so they don’t feel regret “when the dust settles.”
“You can feel the relief when it finally clicks for them,” she adds.
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