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					client care




It’s official – lawyers care
The authors’ earlier articles (“Client care? – yeah, right”, 11                              obligations; the vast majority deal with client payment requirements.
July, and “Client care Q&A”, 25 July) provoked huge interest                               • Not only is the client asked to sign the form, but their signature is to be
                                                                                             countersigned in the presence of an independent witness.
from practitioners. Ron Pol and Ashley Balls have again agreed                             • If an express lien over the client’s documents pending full payment is not
to share their dialogue with the profession                                                  enough, the form provides for a guarantor to countersign and be personally
                                                                                             liable on the client’s behalf.


S
      ince 1 August, clients have received a range of ‘client care’ letters, some in       • The form also calls for the client and guarantor to grant security over land, or,
      legalistic tones seemingly driven by lawyer protection without much regard for         in the case of companies, over all company assets – with mortgages, caveats,
      the client perspective; others that also meet lawyers’ needs, yet are more client-     security agreements, and powers of attorney enabling control over the client’s
centred. New rules under the Lawyers and Conveyancers Act 2006 (Act) provide a               land or assets.
simple test for clients to compare lawyers’ marketing with how they actually interact      • Penalty interest is payable on lawyers’ bills after just 14 days, at five per cent
with clients, and an opportunity for lawyers to showcase their differences.                  above the firm’s overdraft rate a week after the invoice was issued. (The
                                                                                             clients of firms with overdraft rates of 11 per cent plus five per cent when
NZLS template not client-focused                                                             operating beyond overdraft limits may be asked to pay 16 per cent or 21 per
From a technical perspective, the ‘official’ New Zealand Law Society (NZLS)                  cent interest on top of their lawyers’ bills after 14 days.)
client care template meets the legislative requirements, yet hardly seems
consistent with client care:                                                                   To be fair, some terms are on separate sheets capable of being discarded, and a
• Core client care obligations are buried in an ‘information sheet’ appendix to            relatively strict form might be appropriate in some circumstances, for example
    the main letter – core commitment or grudging afterthought?                            uncertainty about the bona fides of some clients, or in helping to sever relations with
• The addition of ‘standard terms of engagement’ with grinding obligations not             others. To their credit, we understand the seminar presenters actually discouraged
    required by the legislation contradicts expressions of client care.                    lawyers from using the ADLS form in circumstances where they have, or want to
• Incorporating client care requirements in gratuitous engagement terms creates            develop, long-term relationships with clients. Although it meets the letter of the
    uncertainty as to what clients need and the impression that all of it should           client care legislation, the reality is that this is not a client care form at all.
    simply be sent.                                                                            We understand the presenters admitted that the form’s drafters were uncomfortable
• The unnecessary recommendation that lawyers should ask their clients to                  with some terms, but included them in response to requests for a set of terms from
    sign and return the letter exposes the reality of lawyer protection masquerading       which lawyers could select the most appropriate for their client relationships. This
    as client care, and the avalanche of legalistic paper cascading on clients             may serve a useful purpose, yet the promotion of an ADLS-approved form – in the
    reinforces lawyer stereotypes.                                                         same stable as other forms used widely throughout the country, such as the standard
                                                                                           sale and purchase agreement – carries with it a broader responsibility. (The
   It is nonetheless commendable that NZLS prepared draft correspondence for               imprimatur of approved ADLS and NZLS forms also appears faintly collusive, with
the benefit of lawyers (the New Zealand Bar Association also later offered its             the profession-wide dissemination of ‘official’ pricing and other obligations not
model free at nzbar.co.nz). NZLS could have simply communicated the new rules,             required by the legislation in ‘standard’ terms of engagement systematically imposed
or charged practitioners for further assistance. The template is also designed to be       on the clients of legal practices around the country.) Lawyers using the ‘standard
modified, so no lawyer can reasonably complain if clients react poorly to client           form’ in the belief it represents good practice, or telling clients that onerous terms
care letters firms haven’t bothered to tailor to their own circumstances.                  “aren’t that bad, it’s just the Law Society’s standard form”, risk further damage to the
                                                                                           public perception of lawyers.
Lawyers’ response overwhelming                                                                 Whether lawyers use the pay-per-use ADLS model or a free version, the cost
Dissatisfied with available templates, firms asked us to develop an alternative to         of understanding the rules, preparing templates, changing work practices, and
actually help demonstrate lawyers’ commitment to clients, which we also chose              monitoring compliance is typically borne by lawyers, but we’ve heard of firms
to make available freely (available from ronald.pol@teamfactors.com or co-                 adding new administrative charges “to cover the cost of client care”. It seems
jones.pmf@clear.net.nz).                                                                   some clients may be asked to pay extra for their lawyers imposing more
   Our offer appeared only a week or so before the introduction of the new rules,          Draconian terms than before the new rules, using ‘authorised’ forms under the
so we thought that if as many as 20 or 30 firms contacted us for a more client-            guise of client care; inflicting more strain on the lawyer brand.
focused letter, it might indicate a reasonably significant level of disquiet within
the profession.                                                                            What can be done?
   The response was overwhelming. More than 220 law firms contacted us,                    The real issue is not the legislation itself. Most lawyers seem to accept the value,
from the largest national firms to sole practitioners, full service firms to specialist    for clients and lawyers themselves, of keeping clients better informed. After all,
boutiques, from major cities and small towns from Kaitaia to Invercargill; and             ‘no surprises’ makes for happier clients, less likely to complain and more likely
others received it from colleagues. The dialogue in which practitioners shared             to pay their fees.
their experiences and concerns also confirmed lawyers’ real client focus. A                   The implementation process remains, however, the profession’s Achilles
genuine client focus is better for clients and lawyers, and offers a stronger base         heel, and risks further damaging the lawyer brand, even as individual lawyers
for building the lawyer brand than protectionist proclivities of the past.                 demonstrate world-class client care.
   Sharing this dialogue with the profession, these comments (without
identifying information) are available at www.teamfactors.com/documents/                   Key implementation issues
Clientcarecomments.pdf.                                                                    • Last minute changes to the rules weren’t helpful; also not helpful was the
                                                                                             lack of information about important elements of the rules until only a few
Client care land grab                                                                        weeks before lawyers were expected to begin operating under them. These
For practitioners somewhat concerned by the NZLS template, the later Auckland                issues are, however, surmountable and transitory.
District Law Society (ADLS) version (“Agreement for Legal Services” available              • The much vaunted ‘consultation’ appears largely to have been an exercise in
from adls.org.nz) – promoted at a seminar attended by about 60 lawyers in early              futility, at least in relation to a client care template inconsistent with expressions
September – will be truly astonishing. If any lawyer wants a relationship with               of client care. Rather than countless meetings between lawyers themselves, we
clients characterised by harsh and oppressive terms, this is the form they want:             suggested to the NZLS’s submissions panel that widespread consultation with
• Of 14 detailed terms, only two unequivocally deal with lawyer-client                       client groups and the public would produce a better outcome for clients and

    NZLawyer              October 2008                                                                                                     nzlawyermagazine.co.nz
                                                                                                                                                         client care




  lawyers, with a client care charter (common in other professions) truly resonating      expertise and client care, with NZLS leaders indefatigable in their pursuit of
  with client needs. Instead, a client care charter – resisted during submissions even    lawyers’ rights. By abandoning traditional protectionist proclivities and a
  in the face of requests by some of New Zealand’s biggest organisational clients         seemingly lawyer-centric focus on client care, the legal profession might grasp
  – seems later to have been cobbled together behind closed mahogany doors. An            the opportunities proactively to position New Zealand’s legal profession as a
  insider confided that it was quickly drawn up mostly from subsection headings;          world-leading, client-focused profession, to maintain and rebuild public
  so the client care charter may be little more than an abbreviated index. Nonetheless,   confidence, and to re-energise the NZLS’s relevance within the profession.
  although the charter could be improved, its real ‘missing’ is not so much the
  words used but a lack of legitimacy in not being developed openly with client
  groups themselves. Also, this form of open consultation process would have               Client care – the lawyers’ perspective
  usefully aided the process of improving lawyers’ public image.
• Irrespective of its origin, however, a client care charter should be confidently         This is an extract of some of the dialogue with practitioners. A longer
  presented to clients, front and foremost, not buried in the small print or in an         version is available at www.teamfactors.com/documents/
  appendix as the ‘official’ versions suggest. This is why our letter begins with          Clientcarecomments.pdf.
  this commitment at the outset (we do not suggest that ours is inherently better
  than other versions; lawyers themselves must select the model (or mix) that              • “[O]ur clients will reel in horror on receipt of the [seven] page effort we
  suits their preferences and circumstances), helping demonstrate that lawyers               will be obliged to send them from next Friday.”
  really do care, as indeed most do, with considerable passion; not inadvertently          • “Nothing will put our clients off faster than a [seven] page terms of
                                                                                             engagement!”
  suggesting they have grudgingly been forced to do so.
                                                                                           • “If I were a client I’d be scared s***less handing my legal work to a firm
• A genuine client care charter should also be widely promoted as a
                                                                                             that behaved like that.”
  cornerstone of what lawyers do, for example in dealings with politicians, in
                                                                                           • “[One and a half] pages sounds far more readable and useful than
  interviews with NZLS representatives, on websites, TV, and radio, etcetera;
                                                                                             seven pages of legalese.”
  consistently demonstrating to the public the client care fundamentals of a
                                                                                           • “I was interested in the [Q&A article]... I certainly had the impression at
  modern legal profession.
                                                                                             the NZLS seminar that the Information for Clients form could not be
• Breaches of a client care charter should also be fully and independently
                                                                                             altered.”
  prosecuted, without the perceived ‘slap with a wet bus ticket’ sanctions of the          • “Like you I cannot understand how the requirements of the client care
  past. This helps unequivocally demonstrate that the client care principles                 regime have morphed into ‘Terms of Engagement’.”
  actually mean something.                                                                 • “I found [your “Client Care? Yeah Right”] article interesting and
                                                                                             informative. I must admit that I may have been one of those lawyers that
   The end result is better client service, consistent with the legislative intent,          perceived the new regime as an administrative exercise in butt covering
and actually reflecting the current practices of many good lawyers, and eventually           and I admit to a little eyeball rolling. However after reading your article
lawyers no longer being regarded as only the twenty-eighth most trusted                      I can see that these requirements can be positive and are an opportunity
profession in New Zealand (according to the annual Readers Digest ranking of                 to improve relationships with clients.”
New Zealand’s most trusted professions (2007 and 2008)).                                   • “We agree that client focused is a much better approach.”
   Many lawyers and firms are demonstrably world class in their level of

                                                                                                                                 October 2008          NZLawyer     

				
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