A New Perspective on Lawyering: Changing the Lawyer-Client Relationship
By Lawrence H. Hoover, Jr.
October 2000, Not Published
For the first ten years of law practice I was pretty uncomfortable with clients who showed emotion during our time together. So I developed some skills in shifting attention away from the issues or circumstances that evoked the emotion so the client (and I) could feel more comfortable. Then I took a mediation training course in 1982 and soon learned that this made no sense. So I begn to use the strategies and skills that I learned as a mediator to find out what my clients really cared about. This meant that I was exploring rather than avoiding the areas of their discomfort.
As a result my clients and I were more engaged and energized. Meanwhile, I began teaching negotiation and mediation at a law school, which kept me in touch with the developments in the expanding field of dispute resolution, especially the primary consensual processes, problem-solving negotiation and mediation. Thus I was able to expand my options for dealing more effectively with my clients’ real concerns.
During this time I was experiencing increasing “job satisfaction,” and although I toyed with the idea of leaving the practice to do more mediation and teaching, I stayed with the law firm and became involved in the development of “alternative dispute resolution” (ADR) on the state level, especially the adoption of a state statute authorizing the referral of cases to ADR processes, the creation of ethics and standards of practice for mediators and for lawyers acting as third party neutrals and teaching practicing lawyers the strategies of representing a client in mediation.
This was at a time when the law practice had already begun to shift from a profession to a business, and litigiousness, an excess of “zealous advocacy” and growing incivility were being recognized and criticized both within and outside of the profession. Lawyer jokes abounded and studies disclosed serious professional dissatisfaction among lawyers.
There follows a summary of various strategies that have been helpful to me in my practice. My experience is that these strategies not only help provide better service to clients but enhance significantly the job satisfaction level. This approach draws not only from theory and practice within the legal profession but also from the wider world, especially psychology, medicine, business and religious and spiritual practices.
Self and Other Awareness
Operating on automatic pilot with a client doesn’t work well. We have a range of conscious assumptions about a prospective client or case based on our life and professional experiences. We are also learning from a scientific and psychological perspective that we have a set of filters or “schemas” on the unconscious level that affect what information comes to the conscious or cognitive level. Self awareness is the best way to begin to free ourselves from these conscious and unconscious assumptions and filters. Think about this as the “inner observer,” the uniquely human ability to think about our thought processes. Two books by psychologist Daniel Goleman, Vital Lies, Simple Truths, Simon & Shuster (1986) and Emotional Intelligence, Bantam Books (1995) are useful resources.
Solid grounding in understanding and appreciating differences in personality type is also useful in enhancing self awareness as well as gaining a better sense of where the client is coming from. Personality typing has been used extensively in business to improve teamwork and enhance organizational behavior and productivity. The Myers-Briggs Type Indicator or MBTI has been the most widely used psychological instrument. I find the Enneagram, a personality system that describes nine distinct and fundamentally different patterns of thinking, feeling and acting, to be even more helpful in understanding how our filters can affect our attention and the direction of our energy. The Enneagram: Understanding Yourself and the Others in Your Life, Harper Collins (l988) by Helen Palmer is one of the best known books in the field.
Self Discipline and Contemplative Practices
Self improvement books have dominated the best seller lists for years and it is not difficult to find helpful advice on self discipline in our professional and personal lives. Professional self improvement for lawyers has been much more focused on information and word processing systems and technology than mental and emotional self discipline and personal and spiritual growth. More work on personal change and growth through contemplative practices such as meditation and prayer will produce multiple dividends, professionally and personally.
Herbert Benson, associate professor of medicine at Harvard Medical School, invented the term “relaxation response” and has studied and written about the integrated changes produced by contemplative activity. Meditation economically produces many benefits because it triggers the coordinated response of our entire organism. These benefits include freshness of perception, increased empathy for others, alert relaxation, enhanced sensory motor skills and other improvements of mind/body/spirit. The positive impact on the lawyer/client relationship is obvious. Herbert Benson’s latest book is Timeless Healing: The Power and Biology of Belief, Simon & Shuster (1996).
The importance of building rapport with a client is obvious. What may not be so obvious or easy is maintaining and communicating respect and empathy despite an inclination to judge, agree or criticize, if only silently. Clients deserve our attention and respect and the best way to communicate this is empathic listening. There are four basic types of communication – writing, reading, speaking and listening. We have spent years learning how to write, read and speak, but how much time have we spent learning to listen?
Empathy is not the same as sympathy. Sympathy implies agreement, like tastes or opinions. While sympathy may be appropriate or helpful in some interactions, it may not be in establishing a professional relationship with clients. For example, clients have often suffered an injury, emotional, personal or financial and blame someone else for it. Sympathy solidifies this blame and self absorption and makes it harder for a client to be open to a variety of approaches.
Empathy means mentally entering into the feeling or spirit of a person; it implies an appreciative perception or understanding. It means you “get it,” that you understand – not just the facts, which is where lawyers tend to place their attention, but the feelings, the emotions. It means that you have a sense of what the experience has been for the client. You can make this known through body language and feed back – statements that communicate this understanding. When you can show this acceptance and understanding the client feels safe to open up layer after layer until they get to the soft inner core where the problem really lies.
The best explanation of this that I know about is Habit No. 5 of The 7 Habits of Highly Effective People by Steven Covey, Simon & Shuster (1989), “Seek First To Understand, Then To Be Understood.” “Seeking first to understand,” says Covey, “diagnosing before you prescribe, is hard. It’s so much easier in the short run to hand someone a pair of glasses that have fit you so well these many years.” Here is where self awareness and self discipline come in. As soon as a client begins her story, we can easily click in to a dozen or more such situations that we have handled. But the client needs to know that you understand her story.
Reframing; Focusing Interests, Needs; Dealing with Emotions
Reframing issues, a strategy commonly used by a mediator, is useful in helping both client and lawyer get clarity on the goals and objectives of the representation and the means by which it will be pursued. A client will often, if not usually, state his “case” as a “position,” i.e., what he says he wants or is entitled to have, such as a monetary settlement of $100,000 for a contract claim. The client might be motivated by the need for self-respect, stabilizing or expanding his business or clarifying or improving a relationship, all of which are “interests.” Once interests emerge from the client interview a lawyer can reframe the client’s position as an interest and place the issues in a more problem-solving, productive format.
As a client recalls and relates the facts and background of the case, strong emotions are often expressed, either verbally or through body language or tone of voice. I have learned that if I can help clarify and openly acknowledge these emotions it helps both me and the client. It shows me what’s important to the client as I try to clarify needs and interests. An empathic acknowledgment of the emotions helps the client release the emotions, think more rationally and recover some psychological space. It also builds rapport.
Scope of Representation and Means of Pursuing Objectives
Rule 1.2 of the Model Rules of Professional Conduct, now serving as the format for lawyer ethics in more that 40 states, says that the client decides on the objectives of the representation and the lawyer abides by such decisions so long as they are within the limits of the law and the lawyer’s professional obligations. Within these limits the client has the right to consult with the lawyer about the means to be used in pursuing these objectives. In that context the lawyer should advise the client about processes such as mediation and interest based or problem-solving negotiation that might be appropriate in pursuing these objectives.
An ethical requirement to advise the client about collaborative, problem solving processes seems inevitable in view of the widespread availability, acceptance and success of ADR. This being the case it is important for lawyers not only to understand the different processes and which would be more appropriate to the client’s needs and interests, but also the lawyer’s role within the process. As to choice of process Rule 2.1 of the model rules says that in giving “candid” advice to clients a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors that may be relevant to the client’s situation. The satisfaction level for clients, as well as lawyers, is more likely to be higher in a consensual, collaborative process.
Choosing a collaborative process would be particularly important where the cost to and effect on other people are predominant and where an adversarial process would ignore, to the client’s disadvantage, the relational or emotional factors driving a dispute. But what if the prospective client insists on a “take no prisoners” approach? And instead of being interested in a collaborative process the client still wants vengeance, even though we have identified underlying interests that suggest a problem solving approach and assessed the likely consequences of litigation. In such a case, declining the representation is always an option. The adversary ethic gives lawyers cover in representing clients whose ethics and morals are personally repugnant. But there is a growing sense that using this “cover” has a corrosive effect on the lawyer’s self esteem and integrity.
Defining the Lawyer’s Role; Negotiation with Client
Once a lawyer has undertaken representation and the means of carrying out the client’s goals have been addressed, the respective roles of the lawyer/client team must be discussed and clarified. The traditional approach is for the lawyer to take the case or the assignment, get the necessary information from the client and proceed to handle it, keeping the client informed. While this continues to be the norm when litigation is initiated, clients have become much more active in dispute processing. Legal education has promoted this change by offering useful theory and skills in “client centered counseling” and in defining the lawyer/client relationship as participatory, a relationship which sees the client as an integral part of a lawyer/client team. ADR has taken this concept even farther since mediation and problem-solving negotiation, the primary ADR processes, require that the client play a prominent role.
Whatever process is chosen, the first step is the lawyer/client negotiation of roles. This negotiation presupposes that the lawyer has educated the client about the process they have chosen so the client can make an informed decision. This negotiation will need to incorporate the strategies referred to above, such as empathy, respect and legitimizing emotions. It will also need to include an honest evaluation of the client’s skills and abilities, although care should be exercised not to conclude too quickly that the client is incapable of taking a prominent role.
“Four-way negotiations,” where lawyers and clients both participate, provide an excellent opportunity for the client to be fully involved. In this process lawyer and client form a negotiating team and preparation is essential in defining the respective roles of each. This can only be done in broad strokes, since the dynamics of the negotiation process are unpredictable and the roles may shift during the process. There should, however, be clarity about whether the client or lawyer will be taking the lead, at least initially, in the process. If the client takes the lead, the lawyer assumes a supporting, advising, coaching role. And when a problem solving strategy is being pursued, the lawyer can take on a more facilitative role, enhancing communications, building trust and encouraging the search for a creative solution.
Advocacy in Mediation
The process which probably requires the most careful definition of the roles of both lawyer and client is mediation, the most widely used of the ADR processes. The easiest to define is where the client attends mediation sessions without a lawyer and consults a lawyer before mediation, between sessions and at the conclusion of the mediation. Here the lawyer assumes an advisory role, educating the client about the legal issues involved, discussing negotiating strategy and commenting on tentative agreements reached in the mediation. What is not so easy is for the lawyer to avoid an adversarial perspective in what is essentially a consensual, collaborative process. Here the lawyer’s advice needs to mirror the problem solving perspective which is the goal of the mediation process when it is used to its best advantage.
When lawyers accompany their clients in mediation sessions, lawyers (and clients) typically assume that it should be the lawyer who decides how lawyer/client mediation responsibilities should be divided. Such an assumption, which often places the lawyer in the lead role, not only risks forfeiting advantages available in the mediation process but also make the process less satisfying for both lawyer and client. First, a client’s interests and concerns may dictate that she take the lead in sharing her perspective with the other party. Second, the client knows better than the lawyer her abilities, and assumptions by the lawyer could sacrifice the value of a moving and effective participation by the client.
Third, conflicts of both economic and psychological interests may exist between lawyer and client. Where the lawyer makes the choices, the lawyer may unwittingly make a decision that is biased in favor of the lawyer’s economic interests (larger legal fees) and psychological interests (ignoring client psychological needs in favor of a financially rational settlement). While a lawyer must ultimately defer to a client’s insistence that the lawyer decide on the respective roles, the lawyer should resist the inclination to assume the responsibility too quickly and may want to revisit the decision periodically.
Jean Sternlight, Associate Professor of Law at University of Missouri, Columbia has written a comprehensive and useful article on this subject entitled, Lawyers’ Representation of Clients in Mediation: Using Economics and Psychology to Structure Advocacy in a Non-adversarial Setting, 14 Ohio State Journal on Dispute Resolution 269 (1999).
Empowerment, Recognition and Coaching
Empowering the client and giving the client opportunities to recognize the humanity if not the point of view of the other party are concepts adapted from Baruch Bush and Joe Folger, who wrote The Promise of Mediation, Jossey-Bass, Inc. (1994). In lawyer/client conferences the client is often in a state of mental and emotional weakness and not in shape to make sound, deliberative decisions. It may not look like weakness, since the client may be initially articulate and energetic, often motivated by anger. But the reality is that there may be elements of uncertainty, confusion, lack of information, strong emotions or other factors that are barriers to rational decision making. The strategies of respect, empathic listening and reframing, together with the more usual function of a lawyer in supplying legal information and advice, research and investigation will help move the client from weakness to a place of strength and clarity.
Clients are also typically self-absorbed, that is, feeling threatened, attacked and victimized by the conduct and claims of another. So they are focused on self-protection and are often defensive, suspicious and hostile to the other party and virtually incapable of looking beyond their own needs. When they choose to become more open, empathetic and recognize another’s situation, they can begin to move away from self absorption and be better prepared to deal with a situation and help choose a process that will be appropriate to their situation. The attitude of respect and empathy are helpful to the lawyer in looking for ways to provide the client with opportunities for this “recognition of other”, which must be voluntary. Lecturing to the client about recognizing the other’s perspective is inappropriate and won’t work, and being sympathetic, i.e., affirming the client’s victimhood, is counterproductive.
The strategies of respect, empathic listening, reframing, helping identify interests, advising and counseling are all included in the role of “coach.” Personal coaching in a variety of settings, particularly business, has been increasing in popularity in recent years. The idea behind personal coaching is simple: Listen to what people want and help them discover how it get it rather than telling them what to do. Coaching is a way of empowering clients to get their needs and interests met. Lawyers may want to experience how this new profession works for insights that will improve the lawyer/client relationship. Here are some web sites: International Coach Federation (www.coachfederation.org); Coach U (www.coachu.com); Coaches Training Institute (www.thecoaches.com).
Conclusion: Spirituality and the Practice of Holistic Law
In the September, 1999 issue of the ABA Journal there is an excerpt from a book by Steven Keeva, Journal senior editor, entitled Transforming Practices: Finding Joy and Satisfaction in the Legal Life. The excerpt examines the relationship of analytical thinking to a broader, more holistic approach to law practice. It then goes on to explore the relevance of ancient spiritual practices, meditation and mindfulness, to lawyers’ everyday lives. ABA Connections hosted a live CLE program by telephone conference call in September, 1999. This is a timely and important development in our profession
I have been struck for some time by the parallels in the practice of holistic health and healing and what I have come to think of as holistic law. Holistic health practicioners have moved beyond the traditional practice of what we refer to as modern or western medicine to incorporate alternative approaches that respect the relevance and interaction of mind, body and spirit. Many of these approaches are drawn from indigenous and eastern cultures as well as our own traditions and religious practices. The medical profession is also recognizing a growing interest on the part of patients in having less invasive treatment options and more control over their own bodies.
On a recent national public radio broadcast of Peoples’ Pharmacy, Herbert Benson, well known holistic health practicioner, was discussing the spiritual dimension of medical practice and the importance of belief or faith in the healing process. He referred to the so-called placebo effect and the importance of a patient’s faith in the treatment the doctor recommends. He then added another dimension to this well known phenomenon. He said that in addition to the patient’s faith, the doctor’s belief that the treatment will work and the caring and respectful relationship between the doctor and patient are relevant to the mind/body/spirit approach to healing.
I think clients are ready for and may come to insist on a change in the lawyer/client relationship. Mediation and problem solving negotiation are increasingly popular “alternative” processes that give the clients more control over their disputes and are less invasive and costly, financially and psychologically, than litigation. And the consensual, collaborative processes of dispute resolution will foster a more caring, respectful lawyer/client relationship that will be responsive to this demand. This relationship of the future will be based on empowering the clients to be more involved so that their psychological as well as material needs can be met and healing can more easily take place. Such a relationship will clearly be more satisfying to the lawyer.
The experiences of my practice, an increasing network of lawyers whose practices are collaborative and holistic and Steven Keeva’s new book and its endorsement by the ABA Journal suggest a shift in this direction.