Communicating With Clients And Other Agents: Revisiting An Old Subject

By David Hamerslough

December 1^st, 2017

Effective communication with clients and agents is as important today as it was 37 years ago when I started practicing law. What’s obviously changed is the manner in which we communicate and how that communication is preserved. Electronic communication is now the norm; while it has increased the pace at which we exchange information, it often does so with the result that person-to-person communication is sacrificed in exchange for expediency.

Here are some suggestions for communicating more effectively, whether that communication is electronic or otherwise.

1. Identify at the outset of your relationship what method of communication your client or the other agent prefers. Document that preference and identify any backup or alternative methods of communication.
2. What is the best time for communicating with your client or the other agent? Do they have a schedule or other time commitments that make it easier to reach them at certain times?
3. Why have the individuals involved chosen a particular method of communication? Is it for the sake of convenience, the pace of the communication, is it a control mechanism, or is it indicative of some character traits of the person you are dealing with (e.g., they are not effective or good communicators by other methods)? If so, how do you overcome any of these issues?
4. Identify when a communication or an issue is perhaps better discussed face-to-face or over the phone. What’s lost with electronic communication, for the most part, is the ability to read a person’s voice or body language or get an unfiltered first impression regarding a subject or issue you are raising with that person. What’s also lost with electronic communication is the personal touch that comes with reaching out to another person to discuss something. This can be especially helpful when you are trying to finesse an issue with another agent.
5. If electronic communication is your client’s preferred choice, suggest that periodic face-to-face meetings or telephonic communications with your client take place. Electronic communication can be less personal than an in-person communication. Some subjects may be handled differently in (or are more suitable for) in-person communication. If you do meet in person or speak via telephone, a good practice is to document those face-to-face or telephonic communications in writing after they occur to make sure everyone is on the same page with respect to moving forward.
6. Many people prefer electronic communication because of its expediency and the belief that it creates a record of what was discussed. This is true, provided that the communication accurately memorializes what has taken place and appropriate measures are taken to preserve such communications.
7. When transmitting material or documents to your client, there can be a tendency for expediency’s sake to provide that without also providing context, comments, impressions, etc. Consider asking them to read, review, and evaluate the material being sent and respond to you with any questions or any requested follow-up and point out any issues or concerns that you may have already identified based upon your own review of the material. Try to anticipate deadlines and provide your client with enough time to evaluate the communication or material transmitted with it, follow up with any questions or comments, and make a decision in advance of any deadline.
8. If information from another source is being relayed by you to your client, identify that source in your transmittal communication, indicate whether you know if the information is true or not, and advise what follow-up, if any, you believe is appropriate or that the client may want to consider.
9. Whether sending or responding to a communication to a client or an agent, consider the purpose of that communication. Is it to transmit information, raise questions and receive answers, identify issues and suggest approaches to resolving those issues, make a request or inquiry, provide advice, memorialize an agreement or a discussion or decision, or some combination of the above? Whatever the purpose of the communication, make sure that purpose is addressed as fully and completely as possible given what you know at that point in time. If there are issues or facts that you are unaware of at the time of the communication, acknowledge them and indicate how those issues or facts may impact what is being discussed.
10. Consider using such terms as “among other things” or “including but not limited to” when you are trying to describe potential risks, topics that were discussed, recommendations that were made, etc. Another way to do this is to clarify that what you are communicating is “some” of the topics, issues, etc. of your communication, not all. This gives you some flexibility so that you are not limited to just what you have specifically identified in your communication.
11. Conversely, if you receive a communication containing this type of qualifying language, be sensitive to that and decide how you’re going to respond. Are you going to clarify that there were no other subjects or issues that were discussed? Are you going to request that they identify what other subjects or issues may have been discussed? Recognize the consequences of not responding in a way that eliminates the potential for a misunderstanding.
12. Does any communication, whether sent or received, address or respond to all of the topics or issues that are the subject of that communication? If not, what is the appropriate follow-up? Do you consider sending a response that clarifies the topics or issues that were discussed to again eliminate confusion or misunderstandings?
13. There are communications that I classify as preemptive. An example is a communication that states that the other party has reached a conclusion and will rely on that conclusion unless they hear from you otherwise. Is that conclusion reasonable and appropriate? If not, how are you going to respond to clarify that point? An example is a communication that concludes with “If I don’t hear from you otherwise, I’ll assume that the foregoing is accurate.” In that case, you need to recognize the possible consequences of not responding in any way to such a communication. One reason for this is that if there is any doubt at a later time about what someone is trying to communicate with you, it is usually better to follow up and clarify the topic or issue at that time rather than waiting until later. Once a dispute arises, people have a tendency to view past events in a very narrow way – generally in a way that favors the position they want to take.
14. Consider the tone of the communication. What tone are you taking, and is it consistent with the purpose of your communication? If responding to a communication, was the tone friendly, aggressive, accusatory, schooling, etc.? What tone do you want to take in your response?
15. If a communication contains a disparaging remark about the other party to the transaction or their agent or some comment by your client that might be misconstrued in the future, it’s better to address that impression or comment at that time rather than leave it the subject of interpretation and/or argument at a later date.
16. The DRE expects that any substantive communication relating to a transaction be maintained and preserved. If you are communicating electronically, how are you going to preserve those communications? Are email communications going to be printed and placed in a file? How will that file be preserved? If you rely on texting, do you have an app that allows you to back up and print those messages for preservation in a file? If not and you are going to screenshot them, make sure that the screenshots capture the whole of the text and don’t cut off any words. Also, make sure the screenshots capture the date and time each communication was made. You need to screenshot or otherwise save all text messages, not just those you think are important or appropriate. Please recall that preserving text messages in the future may be more challenging if the device used for those communications is lost or destroyed or the messages cannot be retrieved from the service provider in the event of loss, destruction, or upgrade/replacement of the device.

In conclusion, remember that your communications with your client and other agents are not privileged and will be discoverable in any legal dispute. Whatever you commit to writing, you may have to live with, and future statements and conduct will be evaluated by, among other things, what you say, how you say it, when you say it, to whom you say it, and what you do not say. Your statements and any conclusions you draw, legal or otherwise, impressions that you make, or adverse comments will all be the subject of scrutiny in the future.