Month: July 2013

The lawyer’s ethical duty to listen

Jennifer Romig4 Comments

The word “listen” and its derivations appear only four times in the Model Rules of Professional Conduct and ABA Annotations. But the mandate to listen to clients pervades them. This post explores the implied affirmative duty to listen to clients. Future posts will explore lawyers’ duty to listen to non-clients and potential clients, and lawyers’ duty not to listen to certain people and information.

Lawyers must be competent, which under Rule 1.1 “requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Comment [5] to Rule 1.1 states that thoroughness and preparation include inquiry into the law and facts, as well as use of “methods and procedures meeting the standards of competent practitioners.” The word “listening” does not appear; the rule and comments do not specify the methodology for collecting information.  Yet listening is a powerful way to glean knowledge about a matter, and sometimes may be the only way to glean certain knowledge (such as a credibility evaluation).

Rule 1.4 sets out the duty of communication, again without using the word “listening” but again implying its importance. Under Rule 1.4(a)(2), the lawyer shall “reasonably consult with the client about the means by which the client’s objectives are to be accomplished.” Implicitly this means listening to the client about the client’s objectives. Comment [2] states that when the client must make a decision about the representation, the lawyer must “promptly consult with and secure the client’s consent . . . unless prior discussions have resolved what action the client wants the lawyer to take.”

Through its references to consultation and discussion, the rule establishes an implied duty to listen. This duty has substantive and procedural components.

The substantive aspect is that a lawyer must listen to what the client says regarding “the client’s objectives” as well as the means of accomplishing them. Listening is implicitly required because the lawyer cannot “reasonably consult” about these things unless the lawyer has, to some degree, listened to the client’s point of view.

And listening is not strictly limited to the literal meaning of what a client says. Under Rule 1.4(a)(5), the lawyer shall “consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.” The means of acquiring this knowledge is not constrained. It is a rare client who would directly state, “I expect you to assist me beyond the ethical rules and the law.” Thus the lawyer must listen to the client (and any other source) enough to know when the situation implies such expectations. [The rule on lawyer as advisor (Rule 2.1) and particularly Comment [5] are consistent with this implied duty to listen to the client carefully to understand what the client wants to do, and advise the client accordingly.]

The procedural aspect of listening in Rule 1.4 is that the listening obligation is reasonable but ongoing (to a degree). Focusing first on the “reasonable” qualifier in Rule 1.4 itself, the listening obligation is not eternal and unlimited. After airing out the client’s objectives and ideas on means for accomplishing them, the lawyer should be able to fulfill the duty of reasonable consultation without further listening.

And under comment [3], when the “exigency of the situation” leaves no time for consultation, the duty to listen gives way to the lawyer’s duty to make a reasonable decision and then keep the client informed.

But the lawyer’s duty to listen is not something the lawyer can finish and forget about. Under Rule 1.4(a)(4), the lawyer shall “promptly comply with reasonable requests for information.” This means the lawyer must monitor communications with the client to be able to comply promptly. The lawyer must be open to the client’s requests for information, listen to them, and heed them when they are reasonable.

Collectively, these references and annotations convey the lawyer’s obligation to listen to clients. Many of the implicit references to listening are presented in the form of how the lawyer will consult with or advise the client. Thus the purpose of the listening is not primarily for establishing empathy or building trust—although these are important and valuable side effects of effective listening. The implied duty to listen exists primarily to allow the lawyer to speak and to act on behalf of the client.

The author gratefully acknowledges the feedback of Professor Timothy P. Terrell of Emory Law School on an earlier draft of this post.

A model of listening

Jennifer Romig6 Comments

For background on listening skills, I wanted to learn more about college courses focusing on listening. The leading text seems to be Listening: Attitudes, Principles, and Skills by Judi Brownell, professor of management and organizational behavior at the Cornell School of Hotel Management. This text has a lot of insights and I will be sharing them and applying them to the legal context throughout the life of the blog.

The backbone of Brownell’s approach is the “HURIER” model:

  • Hearing
  • Understanding
  • Remembering
  • Interpreting
  • Evaluating
  • Responding

Future posts will explore each step of the HURIER model. For now, here are a few holistic observations and broad applications for lawyers:

The proportions within the model are important: Responding makes up just one-sixth of it. This proportion confirms everyone’s intuition that a bad listener is someone who is just working up a response instead of actually engaging with what the speaker is saying. Clients need to be listened to and not talked over, and judges don’t want advocates to interrupt their questions. There are endless situations in the legal professional where speakers can make oafs out of themselves by talking without really listening. Future posts will explore how to mitigate bad listening habits like this and become more effective at listening.

As another broad observation on the HURIER model, it is not meant as a strictly linear or chronological outline of listening. According to Brownell, the model is based on a systems perspective, meaning the parts of the whole are interrelated and interdependent. (She cites Littlejohn’s Theories of Human Communication on this point.) Lawyers engage in so many complex communication situations that this interdependency should be very apparent. How we as lawyers interpret and evaluate depends in part on how much we hear and whether our attention was divided at the time. We can respond by clarifying points that enhance our understanding of the situation and help a further, more substantive response, but excessive requests for clarification could suggest that our hearing and/or understanding may be subpar. The overall process is not neatly linear but iterative and self-reinforcing.

The HURIER model has insights to offer for face-to-face interaction as well as mediated conversations such as videoconferencing and mediated asynchronous communication such as podcasts, webinars and MOOCs. The individual listener’s methods may differ depending on the situation: In a face-to-face meeting, a lawyer may ask a client to repeat something or may decide not to ask, so as not to interrupt the flow of conversation but rather to investigate later. In a webinar with a learning quiz attached, an attorney may choose to “rewind” the material to repeat something because the “flow” of conversation with the recording is unimportant. Listening contexts vary for lawyers as for everyone else, but the model remains informative.

And lastly, the model skirts around difficulties nailing down a specific definition of listening, Brownell writes. Perhaps the most authoritative definition is the International Listening Association’s http://www.listen.org : “Listening is the process of receiving, constructing meaning from, and responding to spoken and/or nonverbal messages.” For lawyers, each and every piece of this definition matters very much to their effectiveness.

The quiet law office

Jennifer Romig2 Comments

iStock_000015443913Small

This blog was partly inspired by  a New York Times article, The Flight from Conversation. The author, Sherry Turkle, explores technology’s disruptions at length in the book Alone Together: Why We Expect More From Technology and Less From Each Other. In the New York Times article, she describes the “flight from conversation” within a law office:

In today’s workplace, young people who have grown up fearing conversation show up on the job wearing earphones. Walking through a college library or the campus of a high-tech start-up, one sees the same thing: we are together, but each of us is in our own bubble, furiously connected to keyboards and tiny touch screens. A senior partner at a Boston law firm describes a scene in his office. Young associates lay out their suite of technologies: laptops, iPods and multiple phones. And then they put their earphones on. “Big ones. Like pilots. They turn their desks into cockpits.” With the young lawyers in their cockpits, the office is quiet, a quiet that does not ask to be broken.

I have heard this same quiet in several 21st-century law firms. It seems different than how I remember law practice. In my day of practicing law, which was the late 1990’s, the office was a busy, noisy place. Every few minutes someone went to the file cabinets lining the hallways, opening and shutting the cabinets with a click. Workrooms were a place to assemble major exhibit collections, with open-door meetings where attorneys and paralegals gathered to spread out the papers and make a plan. Phones rang—a lot—and faxes curled off machines. Snippets of NPR could be overheard from open doors, as well as loud conversations on speakerphone. Senior lawyers sometimes phoned junior lawyers but other times just yelled down the hall, “Do you have the pleadings file in the Smith case??”

It’s easy to dismiss these reminiscences as pre-recession, pre-iTunes nostalgia. They are. Lawyers’ working styles have differed since the time of Dickens’ Bleak House and before; and of course technology has helped with certain kinds of communication, productivity, and even focus. Here’s a rousing (non-law) defense of headphones at least for the “boring tasks,” but experts on the legal workplace are less enthusiastic. Focus is important but isn’t everything. Being open to conversations and the opportunities they bring is something too.