Is Client Service Unprofessional? <i>Too Often, We Seem to Say Yes!</i>

Reprinted from:

Published 5/06

The news astounded me. Almost 30 years after the U.S. Supreme Court ruled that lawyers have a right to advertise their services, the Bar Association of the State Bar of Washington rejected MCLE credit for a program focusing on "Managing Client Expectations." In their words, the intent of the program was to teach marketing skills to lawyers. (Advertising, of course, is one form of marketing, though advertising is not part of the program.)

The Real Definition of Marketing

The real definition of marketing is simple: "Identify the people most likely to hire you for the work you want to do, communicate with them to let them know who you are, and then develop close relationships with these people to help them achieve their goals!" W hat is wrong with helping lawyers identify those who can best use their services and develop close relationships with them? This is not a question of perpetrating fraud on prospects; it is a question of identifying what prospects want and determining whether you, the lawyer, are able to handle the matter.

I recently read a study contending that doctors talk three minutes longer with their patients (clients) than other professionals (lawyers) and that doctors are sued less than lawyers. The article called this extra communication "marketing" that lowered the risk of malpractice. Probably far-fetched. But it is true that the focus of the conversation between a professional and a client/ patient/ customer must be to understand the intent and desires and wants of the client. Only then can you shape your assessment. If the two are in harmony, and you inform the client (so the client understands clearly) what to expect, there is little likelihood of a malpractice claim.

The Real "Unprofessionalism" of the Law

The "conspiracy" between law schools and bar associations continues to demonstrate the archaic attitude that management and customer/client care issues are irrelevant! And we wonder why lawyers get a bad rap, why clients are angry and rightfully believe they have no recourse to redress the management wrongs committed by lawyers! Bar associations give practice management training for attorneys short shrift. Yet, when more than 60 percent of today's discipline structure revolves around complaints over practice management, this should be the major focus of the Bar's education requirements.

In my home state, lawyers spend 80 percent of their dues each year to support the California disciplinary system. If studying management could reduce the number of complaints (and all evidence supports this), then the cost savings presumably would also facilitate a dues reduction. Just whose interests are being served by our continuing obsession that the law is a "profession" and not a business?

Running a law firm in a businesslike way improves the professionalism of the practice of law. The purpose is not simply to get more money for the lawyer; it also benefits the client. A profitable law practice is much more likely to avoid such ethical problems as dipping into client trust accounts, either as direct fraud or as a stopgap "loan." Moreover, a law firm run as a business will also approach client service more efficiently – returning phone calls promptly, creating and adhering to budgets, providing sufficient details on invoices, etc. You can’t truly be a professional service business until you understand "The Business of Law."

Years ago, when I practiced law (before I began coaching and consulting with lawyers) I was very much involved with the State Bar of California's campaign to raise the image of lawyers. I believed this was a losing battle, because by definition 50 percent of the litigating population loses a lawsuit and will think the other side's attorney was mean-spirited, unethical and unprofessional. The State Bar conducted focus groups, and I still have videotapes of them. The focus groups, to a man and to a woman, said that it was THEIR lawyer (not the opposing lawyer) that created the problem. Poor service, failure to return phone calls, inaccurate arithmetic on the billing statements ... and on and on and on.

The Real Problem with Hourly Rates

A perfect example of our profession’s shortsightedness is the continued bane of many clients, the hourly billing rate. Earlier this year McGuireWoods drew considerable attention with an ad campaign that challenged the billable hour. Other firms use billing alternatives, but McGuireWoods made itself distinctive and different simply by talking about the taboo topic of billing ethics. "The longer lawyers take, the more they make," one of the ads says. "Does that align their interest with yours?"

Apply that question to my recent experience in New York. Because the rules for taxi use allow cabs to be shared, I engaged a taxi at $30 whileanother person engaging the same taxi was told that the fee for him was $20. As we were driving, I thought about the fact that we were being double billed. The taxi company was getting $50 when, if only I were the passenger, it would get $30. Was there anything unethical about this? Not at all! Taxi companies charge a fixed fee based on the value of the ride, not one based on time. (Time may be an element of the costing equation that enables a profit calculation, but it is not a pricing component.)

Contrast that with the ethical dilemma of lawyers, who almost universally bill based on time alone. If a lawyer is sitting on a plane or waiting at the courthouse in order to handle a matter for Client A, can he or she use that time to do work for Client B? The rules of professional conduct in most states require billing only one client at a time because billable minutes are the measure of the fee. Firms that do not bill on the basis of time can increase their profit (sometimes called take-home pay) for their service or product when they become more efficient. Lawyers don’t really sell time; we sell a service at a fixed fee. Our goal should be providing value: advice that means solutions to our clients. Hourly billing doesn’t address value and benefits – the worth, as opposed to the cost, of the service.

The Real Issue for Any Lawyer

On October 21 in Philadelphia, I had the pleasure of meeting Fran Musselman, former chair of the ABA's Law Practice Management Section, as he accepted the LPM Section's highest honor, the Sam Smith Award. During his comments, Fran talked about the basic principles that guided him during his long, illustrious career and as chairman of the major New York law firm, Milbank, Tweed. His principles were:

  1. The client comes first
  2. The client comes first
  3. The client comes first
  4. The client comes first
  5. The client comes first

"Unprofessional?" Consider a recent Wall Street Journal article entitled, "Teaching Doctors to Be Nicer." It stated that medical schools have a "hidden curriculum," defined as "the negative messages medical students get in front-line, residency training that seem to contradict everything they had been taught [in courses] about ethical behavior, compassionate care and professionalism." To counteract the negative residency experience, the Accreditation Council for Graduate Medical Education has developed new standards for and more aggressive and vigilant enforcement of competencies for compassionate care, ethical behavior and professionalism.

Fast forward to the legal profession. We don’t require anything of the sort in our law schools. In fact, in conversations I’ve had with educators, their view of law as a profession means that any such programs about effective client communication are trade-oriented and therefore inappropriate for law schools. Is it any wonder that our bar associations don’t require law practice management programs as part of the MCLE requirements? The attitude at the very start of our training is too often perpetuated throughout a lawyer’s lifetime.

I'm all for cleaning up the image of lawyers. But lawyers, first, need to clean up their own act with their own clients. Congratulations to the medical profession for its renewed efforts. It's time for the legal community to wake up and address the real concerns of their clients!

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