The ethics of bearing bad news

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By Stacie Rosenzweig 

Recently, I had to tell a client some bad news. Not run-of-the-mill, we-lost-a-motion bad news, but life-changing, disruptive bad news that I could not do anything to change.

The hardest part of that conversation, and conversations like that, for me, is not the actual delivery of the bad news. The hardest part is not what I say. It’s the pause after I say it. The averted eyes, if the conversation is in person. The silence. And then the realization. It sinks in.

Sometimes the response is measured. “Wow. Thank you. I’m going to need some time to think this over.” Sometimes there are tears. Sometimes there is anger. Rage. At the universe, at the system, at me. Sometimes the silence just keeps going.

I would imagine very few lawyers, regardless of experience, job title, or practice area, find it easy to share bad news. Few of us would say we’re good at it; it’s just degrees of “less bad.” Law-school electives and CLE seminars may touch briefly on “difficult conversations,” but it’s not something most of us are well trained to do. We learn on the job and hope we’re doing it right. Sure, some information flows more naturally, especially when there are concrete steps that can be taken to mitigate or reverse what just happened; if we lose a motion, or a settlement falls apart, or if a prudent course of action is more expensive than budgeted for, we generally have options. As lawyers, we like feeling that we are in control and that we have options.

But for many of us, as litigators and counselors, sharing life-changing bad news that we can’t do anything about is a part of our jobs. Sometimes, we need to tell clients that we’ve run out of options and they can’t avoid jail, or they will lose their house, or they will not be able to practice their profession anymore, or that they won’t be able to see their children outside of a supervised setting.

While it is human nature to want to avoid these conversations, the Rules of Professional Conduct tell us that delivering this news is something we cannot avoid. SCR 20:1.4, Communication, tells us that we need to “promptly” inform clients as to decisions or circumstances requiring informed consent, and to otherwise keep them “reasonably” informed about the status of their matter.

These terms are vague; “promptly” is not defined in the Supreme Court Rules and “reasonably” is rather circularly defined as “the conduct of a reasonably prudent and competent lawyer.”

What does this mean, practically? While you should not unduly delay communicating bad news to a client, in most circumstances, it does not mean you have to rush in and blurt it out immediately. If the news is not so urgent that it has to be delivered right away, you have time to write a script, if that will help you, or at least write down salient points. The conversation can be rehearsed with a colleague, or with your reflection in the bathroom mirror, until you can say it clearly and without rushing or stammering. What you can’t do is play ostrich and bury your head in the sand.

It also means, at least in most cases, the delivery of the news should not be delegated. The clients hired you as their lawyer, and, you hope, trust you.

The delivery of bad news does not necessarily need to be in person; sometimes, due to distance or infirmity or timing, it cannot be. If the talk is done is in person, try to make eye contact and make sure tissues are available. If you talk over the telephone, you don’t have the benefit of body language to help with your response; it’s harder, but try not to interrupt. In either case, if the client begins yelling, do not respond in kind. Just keep a record of what’s said.

On a similar note, SCR 20:2.1 tells us we need to render “candid” advice, and the American Bar Association comment is instructive: “A client is entitled to straightforward advice expressing the lawyer’s honest assessment. Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront. In presenting advice, a lawyer endeavors to sustain the client’s morale and may put advice in as acceptable a form as honesty permits. However, a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.”

In other words, be honest. Be straightforward. Use language that the client can understand, and don’t attempt to minimize something that the client likely feels is catastrophic. “Look on the bright side” is only welcome when there is a bright side.

After telling someone their life’s path would be looking very different going forward, I still get to hang up the phone and go on with my life, even as much as I want to throw something at the wall.

The fact that listening to the pause and then that moment of realization is emotionally draining and difficult for me is my concern, not theirs. The clients to whom we give disruptive news do not get to hang up and go on with their lives. As lawyers, the best we can do is offer honest counsel, and respect their response, their silence – even though it’s hard.

Stacie Rosenzweig is an attorney at Halling & Cayo S.C. in Milwaukee. Her practice centers on working with lawyers and other credentialed professionals in a variety of licensing, professional responsibility and disciplinary proceedings.