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Gideon Habel looks at the challenges of tailoring and delivering difficult advice

Posted on 08 October 2020

In recent weeks, I have had cause to reflect on the peculiar demands on us as solicitors of delivering difficult or unwelcome advice to clients of all stripes.

As solicitors, we have traditionally (and proudly) considered ourselves best able of the legal professions to engage and communicate with lay clients. 

Quite how true that traditional view remains today is up for grabs. There can be no doubt, though, that as solicitors we are expected (and should strive) to be as adept at understanding and relating to people as we are at applying legal principle. Recent examples in my own practice have reminded me again that this is, at times, something that is easier said than done.

Clarity with clients

Unwelcome advice is effectively delivered when it is communicated not only in a way that results in the client understanding its substance and import but also engaging with it, so far as possible, in a constructive and dispassionate way; and acting - or giving instructions - accordingly.

As a profession, we are given guidance on how to deal with certain types of clients whose circumstances demand we take particular care and attention in the delivery of legal services, for example when meeting the needs of vulnerable clients. But what of clients who do not fall within defined categories of vulnerabilities but which nonetheless demand particular nuance in the service we provide to ensure we are properly supporting them and giving the best means of engaging with whatever legal process they are participating in? 

It’s personal

The challenge of considering how best to tailor unwelcome advice lies in carrying out a rough and ready analysis of a number of key factors. These include (but are by no means limited to) understanding: the client’s specific needs at the particular stage of the retainer; the degree to which a solicitor-client relationship of trust and confidence has been established; and the client’s ability to understand the significance of the particular piece of advice in real-life terms at the particular point in time.

These considerations, and especially the latter, are not always readily gauged. This is particularly so where, as so often in legal matters relating to individuals, the issues strike at the heart of a client’s very sense of identity, their physical or mental health, or their integrity and honesty. The initial response, when receiving unwelcome advice, is almost always an emotional one and, once that emotion has infused a client’s thinking, it can be a considerable challenge to alleviate it to a sufficient extent to enable them to take the most appropriate steps to address matters.

The same considerations remain as pertinent when framing advice on a “business to business” basis. Businesses may be separate legal entities to those who run and own them but ultimately it is individuals with ambitions, egos and emotions who will be receiving and acting on your advice. This is the more so if the business has been run by an individual or individuals over such a period that it has become all but impossible for the client individuals to discern where their identity ends and the business begins.

Getting the messaging right and delivering it at the right time is crucial and can go a long way to ensuring clients are able to accept and adapt swiftly. But there is more…

Multimedia?

A further challenge is to adopt the medium by which a particular piece of unwelcome advice is likely to be most effectively delivered. All media – phone calls, face to face conferences, emails, letters or otherwise – come with their own peculiar merits and downsides. We do well to be mindful of and balance these when deciding on how to broach unwelcome advice, not least bearing in mind the impact getting the mode of delivery wrong might have on the recipient’s well-being and stress levels. 

One might think, for instance, that a busy professional would prefer to receive this sort of advice in soft copy to consider at their convenience around their work. But, by the same token, a snatched review of an (often deeply personal) important email received in the middle of the day without the necessary time to consider and process it can add exponentially to the cortisol levels.

As an alternative, of course, one might simply ask how the client might like the advice delivered. But, if the client is particularly anxious, asking this question in a call or email might only result in a panicked call and pressure to explain the advice “on the hoof” rather than in the considered and measured manner you had intended. 

Covid-19: 20-20

Without wishing to overstate the case, the importance of getting delivery of difficult advice right is a particular concern in the context of Coronavirus. 

Getting the balance right when communicating difficult advice can be the difference for a client between a lonely, sleepless night and a well-thought-out plan and a solid eight hours. As solicitors, we will be acting, in many cases, for clients who remain isolated, whether that be socially from friends and family from whom they would usually glean support, or professionally from colleagues as a result of working from home. 

Despite the breath-taking ease with which the social and professional world has taken video communication online in the pandemic, the virtual experience pales in comparison for clients when, after the difficult advice has been delivered, all they are left with is the prospect of a “virtual hug” or Teams appointment as opposed to a physical shoulder to cry on or a “3D” colleague to bounce ideas around with about what to do next. 

The principles: empathy, professionalism and mutual respect

In all of this, what remains a given is that, as solicitors acting in our clients’ best interests, independently and fearlessly, we cannot and must not shy away from communicating the messages our expertise tells us must be communicated at the right time. To do otherwise would be to depart from those principles – indeed, potentially from the Principles. The challenge before us is to ensure, so far as possible in every case, we do so in a way that not only takes account of the particular client’s characteristics and personality but also in a way that resonates and best enables the client to engage constructively going forward.

Client care is an art rather than a science. So much of it is borne out of what might be called “feel” or “intuition”. In my view, however, at its core lies the ability to successfully build rapport with clients regardless of their legal, personal or commercial situation. That rapport is, in my experience, more often than not, based on empathy, professionalism and mutual respect. 

In common, I imagine, with the vast majority of solicitor colleagues, I continue to strive to give my clients the very best service possible, informed by the particular characteristics and personality of each. In doing so, I accept and embrace that none of us is perfect, none of us all-knowing. I also accept that, in challenging ourselves every day to do the very best for our clients and deliver according to their needs, we learn as much about ourselves and being human as we do about legal practice.

A version of this article was first published in the September 2020 edition of the Solicitor’s Journal (Volume 163 No.8)

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Gideon Habel
Regulatory and disciplinary

Gideon Habel

Gideon acts for regulated professionals in disciplinary investigation and prosecution matters