Voices of Reason
Denice DeStefano hears it all, and then some. As assistant executive director of the New Hampshire Bar Association, one of her responsibilities is answering calls from people who are complaining about their lawyers.
“A lot of times, clients just want someone to talk to,” she says. So, she lets them talk. Often, the problems stem from simple miscommunication: Clients don’t have a good understanding of what is happening in their cases, and their lawyers haven’t taken enough time to explain.
“The clients don’t know the right questions to ask, and the attorneys assume that clients know more than they do about the legal process,” DeStefano says. “My guess is that in the attorney’s mind it’s usually little things the client is asking for, but in the client’s mind it’s generally the focus of their day, and that’s what their life is about right now.”
New Hampshire is one of a handful of state bars to initiate an attorney consumer assistance program, which directs complaints about lawyers to an intake person first, rather than the more traditional method of requiring those taking issue with their attorneys to complete a formal complaint that is sent directly to bar counsel for investigation.
“Under the old system, somebody files a complaint with a form and eventually someone gets around to looking at it,” says John Gleason, chief of the Colorado Supreme Court Regulation Counsel. “When someone has a complaint about a lawyer, it’s typically about a failure to communicate. And what do we do? We fail to communicate with them, too.”
The concept of consumer assistance programs originated with the Mississippi Bar, which launched the first one in 1994 after a spike in lawyer complaints related to poor communication, says Robert Glen Waddle, director and counsel of the Mississippi Bar Consumer Assistance Program.
He says the number of formal complaints has decreased 30 percent in the last 11 years.
Other state bars that have adopted similar programs also report that they are able to resolve complaints much faster than before. In Colorado, for example, Gleason says the wait time on formal complaints has been cut from one year to about 10 days. And the number of formal discipline filings is also dropping because lawyers and clients are working out their issues without the intervention of state bar discipline counsel, program officials say.
Which is fine by state bar disciplinary counsel, Waddle says. He suspects most would prefer to concentrate on more egregious lawyer conduct rather than hunt down lawyers who don’t return phone calls.
Waddle–who also trains consumer assistance program lawyers and staff in other states–has found that all of the agencies get a similar number of calls, and that most of the calls involve communication problems between lawyers and clients.
However, DeStefano adds, many callers make it clear that, despite the communication breakdown, they really like their attorneys and don’t want to get them in trouble. But they also worry that their matter is not being handled correctly.
The reason for the disconnect? Clients are often intimidated by their lawyers, and sometimes they don’t ask questions because they fear that will cost them more money. The situation isn’t unique to New Hampshire–lawyers who oversee similar programs in different states report the same concerns.
And lawyers need to be made aware of that fact, says Kip Micuda, who directs the State Bar of Arizona’s Attorney/Consumer Assistance Program. “If attorneys spent a little bit more time listening to their clients and talking to them about what’s going on in their case,” he says, “I suspect this program would have a lot less business.”
The Arizona program started in 1999. Before that, all lawyer complaints went directly to bar counsel. According to Micuda, bar fficials there recognized that money spent on discovery could be put to better use in the intake process. Staff lawyers handle the calls that come in, and complaints are usually resolved within 30 days. The office receives 40 to 150 calls a day.
Attorneys also call the program for assistance. In one instance, Micuda got a call from a divorce lawyer who was getting numerous calls from her client’s estranged husband. The lawyer obtained a restraining order against the man, who was a pro se litigant, but didn’t want to report his order violation because she feared that would make dissolving the marriage more difficult.
So Micuda called the husband. “First I asked him what his concerns were, and I suggested that he should call me instead of her if he had problems,” he recalls.
The husband did–twice before the marriage was eventually dissolved. “If [people are] butting heads with the legal system,” Micuda says, “sooner or later they tend to come to us.”
There are also those callers who simply have unrealistic expectations about how often heir lawyer should be in contact with them, says
Anne Kaufman, an assistant bar counsel who oversees the Massachusetts Bar Counsel’s Attorney and Consumer Assistance Program. “But generally they’re callers with legitimate complaints,” she says. “I think it would be nice for lawyers to return client calls the day they’re received, even if it’s not the lawyer himself or herself it can be the secretary.”
Talk It out First
With most calls, DeStefano says she encourages cli¬ents to contact their attorney with specific questions, either by phone or mail. The New Hampshire Bar Association does not handle attorney discipline, and if a caller doesn’t think his or her problem can be solved by her suggestions, she tells that person to contact the state supreme court’s attorney discipline office. “But the first thing I do is encourage the person to contact the attorney and ask the lawyer to better explain what is involved in the case,” she says.
When Waddle handles calls, he suggests that clients with communication issues ask their lawyer in a letter to contact them within seven days. Alternatively, Waddle offers to write letters himself, sending a copy of the letter to both the lawyer and client. “Most of the time, when the attorney gets back in touch with the client, things carry on with no problem,” Waddle says. “About 70 percent of our cases go that way.”
A former criminal defense lawyer, Waddle also reviews letters from inmates. “Usually, if it’s pretrial detainees, what they really want is for the attorney to come visit them at the jail,” Waddle says. “If it’s a post conviction criminal, most of those folks want out, and they want their transcripts.”
The job is not without risk. One inmate who had problems with his appellate lawyer didn’t like Waddle’s response to his complaint. He abandoned the idea of filing a complaint about his lawyer and instead filed one against Waddle.
“It was dismissed, of course,” Waddle says. Waddle also says he gets “frequent flier” callers, who contact him repeatedly about various lawyers. And he gets complaints about frequent flier lawyers, too attorneys who “kind of live on the edge and are always having communication problems.”
Like Waddle, Kaufman in Massachusetts also offers to write a letter on behalf of clients whose lawyers aren’t communicating well. For more serious matters, Kaufman offers to send clients a complaint form.
When making the second offer, she tells clients to decide whether they are staying with their attorney or switching counsel. “If they want to stay with the lawyer, I’ll try to advise them on what they might do to get the lawyer’s attention,” she says. “We try to educate and empower the clients to make clear what their perception is.” If that is successful, Kaufman says, she rarely hears from such clients again.
Calls that are made to the Colorado state bar go first to a nonlawyer intake worker who inputs the caller’s information into a specially designed computer program, Gleason says. That information then goes to a staff lawyer, who determines whether the complaint has merit. The decision is reported to the caller and the lawyer in question.
For complaints found to be without merit–about 85 percent of the calls received each year, Gleason says–the caller has the option of appealing to Gleason Gleason’s office recently surveyed clients who called in with lawyer complaints, and the results were encouraging.
“Even though 90 percent of them didn’t get the news they wanted, the vast majority were happy with the system,” he says. “What’s more important, people go away with a better understanding of the lawyer’s role.”
Stephanie Francis Ward is a legal affairs writer for the ABA Journal.
Stephanie Francis Ward is a legal affairs writer for the ABA Journal.