Nalini persad salick managing clients' expectations

The Jamaican Bar Association Continuing Legal Education Conference

IT IS “JUST” THAT WE SHOULD [be]

Managing Clients’ Expectations [via]

Communication (Nalini Persad-Salick)

NOVEMBER 18-20, 2016 HILTON ROSE HALL RESORT AND SPA MONTEGO BAY, ST JAMES

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MANAGING CLIENTS’ EXPECTATIONS

Relationships engender expectations The genesis of the client’s expectations is the retainer. That simple engagement contract that is made either orally or in writing1 establishes the relationship between the parties and thereby fosters clients’ expectations. Let us for a moment consider the other relationships in our lives that generate expectations, for example, the parent-child relationship; the employer-employee relationship and our relationship with the Creator.

From whence do these expectations cometh?

The question is deliberately couched in archaic language to relate temporally with these timeimmemorial high expectations. As we received our laws so too we received the systems, traditions, customs and expectations that came with them.

The ideals and high expectations of the profession, as expressed in the Canons, form the basic norm or the grundnorm2 for our profession. These Canons are our profession’s founding document upon which the profession rests. They are expressed by the profession, they are made for the profession and they are the expectations of the profession. They are ours and we must own them as much as we must own up to them.

None can deny the inextricable link between the administration of justice and the part that the profession plays in the maintenance of the status quo.3 When there is loss of hope in the institutions that carry the state, there will be lawlessness and failed statehood. We are called on to do our part to ensure that we preserve the laws and the Constitution and by extension the State. We are reminded in Canon III of the Legal Profession (Canons of Professional Ethics) Rules4 that we owe a duty to the State to maintain its Constitution and its laws. We are not alone in this calling, for throughout the region and the world fellow officers of the court are charged with the similar responsibility of assisting in the administration of justice.5

1

Allen v Bone (1841) 4 Beav. 493.

Hans Kelsen in a Pure Theory of Law used this word to denote the basic norm, order, or rule that forms an underlying basis for a legal system.

3 “The first thing we do, let's kill all the lawyers.” Shakespeare, Henry VI, Act 4, Scene 2.

4 The Legal Profession (Canons of Professional Ethics) Rules, Jamaica Gazette, Friday, December 29, 1978.

5 Canon III (f) - An attorney shall not act contrary to the laws of the land, or aid or counsel or assist any man to break those laws.

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A thematic approach to the expectations outlined in the Canons The Canons reveal two prevalent themes of loyalty and integrity. These themes share common ground with modern-day, good-governance terminologies of transparency and accountability. This discussion will treat with an interpretation of these themes and the urgent and dire need to communicate efficiently and effectively so that we can meet our own, as well as our clients’ expectations.

LOYALTY Understanding Loyalty The Oxford English dictionary uses terms such as duty, allegiance, faithfulness, fidelity, respect, deference and reverence as synonyms for the word loyalty. It is therefore not surprising that the Canons speak in terms of the duty that is owed6 by the profession. Unlike the word duty which may connote a perfunctory kind of act, I have deliberately chosen to substitute the word loyalty in its stead. I find the word loyalty to be richer in meaning with connotations of the heart.

Experience the difference in connotations when you hear: “It is just that we should show our duty to the State” “It is just that we should show our loyalty to the State.”

Why should there be any heart in this discussion, you might ask? Have we returned to the old head and heart argument?7 Is there any place for this? After all ours is a very cerebral profession.

While the latter statement is true, ours is a profession where there is human interaction and more often than not, human conflict. Clients come to us in their darkest hours, when they are victims, when they are hurting and in distress, whether that distress is physical, emotional, financial or otherwise, it is distress nonetheless. Are we to have a perfunctory façade or should we return that loyal human face to our profession. I call on all gathered here today for a return of humanity to our profession. It is not simply “just” that we should, it is simply that we must act now!

Canon III – An attorney owes a duty to the public to make his counsel available and a duty to the state to maintain its Constitution and its laws and shall assist in improving the legal system.

7 “My crown is in my heart, not on my head”. Shakespeare, Henry VI, Part 3 6

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LOYALTY TO THE CLIENT Communicating loyalty to the client – not only in words but also through action!

Acting in the best interest of your client means much more than not stirring up strife or litigation.8 While it means that one ought not to be concerned with “making wuk” 9 but with settlements of disputes, it also means being loyal to the client, looking out for his wellbeing, protecting, guarding and shielding the client’s interest. Loyalty is not to oneself but to one’s client. Tonya Bastian Galanis in a chapter10 entitled A Balancing Act: Fiduciary Obligations and Conflict of Interest speaks in terms of an “undivided loyalty” to the client. We need a shift in the paradigm. Too many of our colleagues in the region believe and behave in a manner that suggests that this profession is self– serving. It is not! It is about you in the society, as a helper, as an aid-worker, as a stakeholder in the administration of justice. Isn’t it “just” that our Profession’s credo should be: “Ask not what the profession can do for you, but what you can do for the profession?” How can we improve the negative image that the society has of us? We must begin by recognising that some have contributed to the formation of that negative image by aloofness, delusions of grandeur and a lack of prompt, respectful and effective communication with our clients.

From the initial stages in the relationship we are required to communicate the type of retainer created. Whether the contract is divisible or not and how and when payments are to be made. On taking instructions, we are to give our clients the best information available about the likely cost of the matter. The matter of costs should be dealt with expressly and it is the attorney’s duty to raise this with his client. If no fee can be agreed or estimate given, the attorney should tell the client the basis on which the fee will be calculated e.g. on an hourly rate.11 If an oral estimate is given the attorney should confirm this later in writing. The attorney should also discuss with the client how the legal charges and disbursements will be met. We are to advise the client of the approximate time when these payments will have to be made. A client may be required at the outset of a retainer to make a payment on account of costs and disbursements to be incurred.

Additionally, an attorney must obtain the agreement of the client to take unusual or unusually expensive steps.

8

Canon III (i) Trinidad and Tobago expression which means creating work or, in this context, initiating litigation.

10 Shazeeda A. Ali, The Ethical Lawyer: A Caribbean Perspective, (2015) 11 The “Fair and Reasonable Test” is the yardstick by which fees are measured. Charging fees which are unreasonable may amount to professional misconduct. See the case of Re Eastmond (1995) 50 WIR 76 9

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“The client must be fully informed of, and advised on, the probable additional cost involved and its effect in relation to the client’s own assets and any statutory charge on any property recovered or preserved in proceedings”.12 Where unusual costs are likely to be incurred in the course of an action, the attorney should expressly inform the client and obtain his consent before incurring those costs.

“I take it to be the general rule of law, and an important rule which is to be observed in almost all cases, that if an unusual expense is about to be incurred in the course of an action it is the duty of the solicitor to inform his client fully of it, and not to be satisfied simply by taking his authority to incur the additional expense, but to point out to him that such expense will or may not be allowed on taxation between party and party whatever may be the result of the trial.” per Baggallay L.J. in Re Blyth & Fanshawe [1882] 10 Q.B.D. 207 An attorney’s duty is to protect his client’s interest by: (i) carrying out all instructions in the matters to which the retainer relates by all proper means; (ii) consulting with the client on the questions of doubt which do not fall within the express or implied discretion left to him; and (iii) keeping the client informed as may be reasonably necessary.13 Proper communication is therefore essential at the start of the engagement and must continue throughout the retainer to maintain good relations and to meet clients’ expectations.

LOYALTY TO THE STATE AND THE ADMINISTATION OF JUSTICE The Cannons remind us that we are expected to show loyalty to our clients and the public in general when we promote and encourage the modernisation, simplification and reform of the laws.14 We successfully manage expectations when we make a contribution either individually or collectively, in a meaningful way to the legislative reform process and when we avoid the politicization of legislation.

Canon IV speaks in terms of loyalty when it mandates that an Attorney shall act in the best interest of his client and represent him honestly, competently and zealously within the bounds of the law.

He shall preserve the confidence of his client and avoid conflicts of interest. We validate client’s expectations when we act in concert with the Canons. Disharmony with the Canons create what is often described as “noise” in communication theory. Consistency in the messages (written or unwritten) and the frequency in the communication is what feeds good client expectations and relations.

12

Re Solicitors, Re Taxation of Costs [1982] 2 All E.R. 683 Groom v Crocker [1939] 1 KB 194 at 222; Groom v Crocker [1938] 2 All ER 394 14 Canon III (j) 13

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INTEGRITY It is instructive that the very first Canon speaks to integrity. It advises that an attorney shall assist in maintaining the dignity and integrity of the legal profession and shall avoid even the appearance of professional impropriety. Paragraph (c) of Canon I, calls on attorneys, not only to observe the Canons, but to maintain their personal integrity and to act in a way not detrimental to the Legal Profession. The Canons themselves make a strong and initial plea for loyalty to the profession.

Cannon VII details the expectations of financial propriety on the part of the attorney. In an earlier place at Canon IV, we are reminded that while we act in the best interest of the client, we are to preserve the confidence of the client and to avoid conflicts of interests.

When we communicate integrity we are communicating wholesomeness. Wholesomeness communicates consistency and constancy. We must lead by action. What we say, we must do; and we do, must be in harmony with what we have said. The consort of integrity is dignity. We are asked in the Canons to maintain the dignity of the profession;15 to maintain integrity;16 and to maintain a proper professional attitude and conduct indicative of courtesy and good faith.17 The use of the word maintain in the Canons is instructive as it communicates the fact that the profession subscribes to a benchmark.

How we communicate with our clients will demonstrate our adherence to the profession’s expectations and will assist in managing (influencing) clients’ expectations of us. There is the need always to communicate promptly, that is, in a manner that promotes public confidence in the integrity and efficiency of the legal system and the legal profession.18 The integrity theme runs throughout the Canons and deals, inter alia, with issues such as:   

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The giving of certificates of good character19 The maintenance of honour20 Being fearless,21 independent22 and exposing without fear or favour dishonest conduct23

Canon I (b) Canon I (c) 17 Canon VI (a) 18 Cannon VIII (b) 19 Canon I (a) 20 Canon I (b) 21 Cannon III (c): An Attorney shall not be deterred from accepting proffered employment owing to the fear or dislike of incurring disapproval of officials, fellow attorneys or members of the public.

22 Canon IV (c) 23 Canon I (d) 16

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       



Not holding out unqualified persons to act as a lawyer24 Not attracting business unfairly25 Not poaching the client of another Attorney26 Being a protector of the laws of the land27 Charging fees that are fair and reasonable28 Avoiding conflicts of interest29 Confidentiality30 Due expedition in providing the client with all information as to the progress of the client’s business31 and being punctual in attendance and in the disposition of causes32 Maintaining proper accounts33

INTEGRITY AND UNDUE INFLUENCE I have chosen to focus on the presumption of undue influence which falls squarely within the integrity spectrum and which is an area often marginalised for discussion. I have also chosen to discuss this area because I see it as the place where loyalty to the client either meets or collides with integrity. How we manage the meeting or collision will determine our clients’ perceptions and expectations of us.

As fiduciaries, attorneys are persons in whom others have put their trust and confidence. We exercise great influence over our clients and consequently, we must be mindful of the claim of undue influence that can be levelled against us. We must strive always to act in a manner that would clearly rebut the presumption of undue influence that we are said to wield over our clients.

We must conduct ourselves in a forthright manner so as not to communicate impropriety and tarnish our clients’ high expectations of us. Like Caesar’s wife, we too must be above suspicion.

Undue influence is a ground of relief developed by the court of equity as a court of conscience.

The original object for developing the ground was to ensure that the influence held by one person over another was not abused. A party to a transaction, though consenting to it, may not have given free consent because of the influence of the other party who may have deprived the first party of

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Canon II (a) Canon II (b) 26 Canon II (c) 27 Canon III (f) 28 Canon IV (f) 29 Canon IV (j) 30 Canon IV (t) 31 Canon IV (r) 32 Canon V (q) 33 Canon VII 25

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the free use of his judgment. The law makes a distinction between actual undue influence and presumed undue influence.34 The former is an equitable wrong deliberately committed by the dominant party against the other which makes it unconscionable for the dominant party to enforce his legal rights against the other.

The latter arises out of a relationship between two persons where one person has acquired over another a measure of influence and then gets an unfair advantage. The relationship of attorney and client gives rise to a presumption of undue influence. Unless it is established that an attorneyclient transaction is the result of the exercise of the client’s free will, there is a presumption of undue influence and the transaction will not be upheld by the courts.35 Where it can be proved that: (a) the client placed trust and confidence in an attorney in relation to the management of the client’s financial affairs; and (b) there is a transaction which calls for explanation, the court will infer that, in the absence of a satisfactory explanation, the transaction could only have been procured by undue influence.

Proof of these two facts is prima facie evidence that an attorney abused the influence he acquired in the parties’ relationship.

It is noteworthy that the presumption of undue influence is one that can be rebutted36 and that when invoked the evidential burden shifts to the attorney37and will require the attorney to show that: (i) he acted with complete faithfulness and fairness; (ii) he fully disclosed all information in his possession to the client;38 (iii) he afforded the client an opportunity to obtain independent advice; and (iv) where appropriate, that he paid a fair price.39

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National Westminster Bank Plc v Morgan [1985] 1 All ER 821 Allcard v Skinner [1887] 36 Ch 145 ; Longstaff v Birtles [2002] 1 WLR 470 36 Demerara Bauxite Co. V Hubbard [1923] A.C. 673, 682 37 Allcard v Skinner [1887] 36 Ch 145 ; Royal Bank of Scotland v Etidge (No.2) [2001] 4 All ER 449 38 Mc Pherson Watt [1877] 3 A.C. 254, 272 39 Wright v Carter [1903] 1 Ch. 27 35

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Invoking the presumption – the triggers40 (1)

Purchases by Attorney from Client (a) An attorney must give all advice to the client that he would have given to a third person. (b) An attorney must show that: (i) the client was clearly and adequately advised; (ii) the client was duly informed; and (iii) the price paid was fair.

If these factors are not present, the transaction will not be upheld.41

(2)

Sales by Attorney to Client (a) An Attorney must not make a profit at a client’s expense. (This is keeping with the Canon to always act in the best interest of the client) (b) Where there is no full disclosure the sale may be set aside.42

(3)

Loans by Attorney to Client Security taken by an attorney for a loan to a client is governed by the same principles which apply to a purchase, namely independent advice should be obtained.43

(4)

Loans by Client to Attorney There should be independent advice. If not, an attorney should be absolutely scrupulous and ensure that terms are not more favourable to him than is usual.44

(5)

Gifts to Attorney by Client The relationship between attorney and client prohibits gifts or any gratuitous benefits unless there are exceptional circumstances.45

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The author acknowledges that these specific instances of undue influence were extracted from the 2013/2014 Course Manual for Ethics Rights and Obligations of the Legal Profession, Hugh Wooding Law School.

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Knowles v Francis (1983) 32 WIR 205; Mc Pherson v Watt [1877] 3 A.C. 254, 272 Armstrong v Jackson [1917] 2 K.B. 822, 828, 829; Regier v Campbell-Stuart [1939] Ch. 766 43 Re Eastmond (Harold) (1995) 50 WIR 76; Spector v Ageda [1973] Ch 30 44 Re Eastmond supra 45 Liles v Terry [1895] 2 Q.B. 679 ; Wright v Carter [1903] 1 Ch. 27; Morgan v Higgins, supra; Goddard v Carlisle [1821] 9 Price 109, 147 E.R. 57 42

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The traditional view is that the court will not set aside gifts of a trifling amount46. This view was disapproved on other grounds in Lutchman Ramcoomarsingh v Administrator General [2002] UKPC 67 (Trinidad and Tobago).

(6)

Bequests and Devises to Attorney Where an attorney takes a large benefit under a deed or will that he had prepared, the court must be satisfied that the testator/grantor knew and understood what he was doing and that the will/deed has given effect to his intentions. The possibility or undue influence must be ruled out and the simplest way of doing that is to ensure that an independent legal advisor was consulted: Lutchman Ramcoomarsingh v Administrator General, supra. Where the client intends to give a large benefit, an attorney should insist that the will be prepared by another attorney.47

(7)

Attorney as Agent on sale Recall the advice of Canon IV that an attorney’s interest and duty should not conflict.48

(8)

Attorney as Agent on purchase If an attorney makes a secret commission or profit, the client can seek relief from the court.

(9)

Purchase of subject matter of litigation An attorney should not purchase the subject matter of litigation which he is conducting for the client.49

CONCLUSION

Managing Expectations – Everybody’s Business –Yours and the Profession’s In concluding I would like to add that it is just that we should be managing clients’ expectations much better than we are currently. The job of managing clients’ expectations rests with all and sundry, each and every individual attorney. Management starts with none other than with you and me. Each one of us makes up this collective, constituent body we call the legal profession. We know what is right and what the expectations are of us. We know of the old adage that it only takes one bad apple to spoil the whole bunch. Why then is there a disconnection between the profession’s 46

Rhodes v Bate [1866] LR 1 Ch App. 252 at 257-258 Re A Solicitor [1975] Q.B. 475 48 Tyrell v Bank of London [1862] 10 H.L. Cases 26, 44; Mc Pherson v Watt supra 49 Knowles v Francis [1995] 32 WIR; Wood v Downes [1811] 18 Ves 120 47

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own expectations and the clients’ expectations of the profession? Why the “uncomplimentary characterization of Attorneys-at-law as “sharks” and other forms of low life”?50 Why is it that throughout Literature we have been painted as debauched men? Is it life influencing literature or vice versa?

Perhaps the answer lies in the fact that the clients have become wary of too much wrongdoing in the profession. Perhaps it is because we have forgotten that we are counsel in the attorney-client relationship and that we are not mere scribes; that we must advise and act in the best interest of the client while at the same time upholding the law and our founding and guiding principles, the Canons.

Perhaps it is that we need gentle reminders that we are expected to act honourably, with courtesy and with dignity. We need to communicate respectfully in words and in deeds. What is required is a strong, sustained and concerted effort by all the members of the profession, from the law tutor, to the sole practitioner all the way up to the judiciary, to make right what is wrong with our profession.

We need equality of treatment in the profession. No matter where you are in the hierarchy, if and when you breach the Canons, you must be called to account. Whether or not you are the Attorney General and titular head of the Profession, when you breach the Canons, you need to be chastised.

Far too often our titular heads wear their political or ceremonial cloaks not over their shoulders but over their heads so that their vision is not only blurred but barred (pun intended).

When we communicate that we are properly managing our profession, when we speak out about what is wrong, when those in authority listen and act with due expedition,51 then and only then will we assist in improving the legal system52 and deal head on with the public’s cynicism of our profession. It is then and only then that we will begin to manage client’s expectations successfully because we would have communicated that we mean business and we mean what we say.

Paula-Mae Weekes and Nalini Persad-Salick in ‘Let’s be Fair and Reasonable: Attorneys’ Remuneration’, in Shazeeda A. Ali (ed), The Ethical Lawyer: A Caribbean Perspective (2015) 51 Canon IV (r) 52 Canon III 50