By Rebecca Howlett and Cynthia Sharp
Walls keep everybody out. Boundaries teach them where the door is. —Mark Groves
Creating and enforcing clear and appropriate boundaries with clients is a critical aspect of the attorney-client relationship. Effective boundaries can help an attorney build trust and respect, decrease stress, and improve the quality of representation. Setting and maintaining boundaries can be a challenge, however, especially because we undoubtedly work with clients who have various expectations, needs, or perspectives. In this article, we outline the signs of blurred boundaries, explore the importance of creating and enforcing clear boundaries, and conclude with suggestions on how to effectively establish and maintain them in practice.
Although most of us entered the profession because we want to help people, it can be difficult to keep emotions in check. Indeed, some practitioners are at heightened risk of compassion fatigue and secondary trauma, including judges and attorneys in criminal and family court. One of our readers, Matthew—a matrimonial attorney with ten years in practice—shared the following experience. Perhaps some of you have experienced similar dilemmas.
Sally (not her real name) retained Matthew to represent her in a divorce from her abusive husband with whom she had two small children. Matthew felt sorry for her from the outset and was committed to obtaining a favorable result. During the representation, Matthew became deeply emotionally invested in the matter, and his actions contributed to “boundary creep.” For example, he frequently communicated with Sally after normal business hours when the conversation could have easily taken place between 9:00 a.m. and 5:00 p.m. These after-hours conversations, which often focused on Sally’s emotional struggles, frequently went unbilled because of the personal connection that had been established.
Ultimately, Matthew began opening up to his client about his own abusive childhood and shared extensive details about how it has affected him. After Sally’s estranged husband filed for bankruptcy, she begged Matthew to represent her interests in the proceedings. Matthew planned to do so even though he had no experience whatsoever in bankruptcy law.
Fortunately, Matthew’s law partner was made aware of the situation and gently pointed out that personal and professional boundaries were being crossed. His partner compassionately yet clearly explained why corrective action was necessary to ensure Matthew and his supervising attorney met their respective ethical obligations, safeguarded the integrity of the client’s matter, and properly supported Matthew’s overall health and well-being and that of his client.
If his partner hadn’t stepped in, Matthew could have found himself perpetuating an unhealthy and ethically compromising situation—one in which many lawyers find themselves stuck. Once he processed his partner’s perspective, Matthew had a difficult and straightforward conversation with Sally and was able to reestablish a purely professional relationship. The firm also referred Sally to trauma-informed counseling resources for herself and the children.
This experience also helped Matthew see he needed more support to address his own childhood trauma, and he ultimately entered professional therapy. Matthew shared that counseling has indelibly changed how he approaches the practice of law. He reports that therapy has helped him to process his adverse childhood experiences (ACEs), as well as empowered him with tools and skills to set appropriate boundaries with clients and others.
Indicators of Weak Attorney-Client Boundaries
In retrospect, Matthew realized that the signs of overstepped boundaries were apparent all along. After lengthy reflection and talking through the situation with his therapist, he realized he had been unaware of the “red flags” at the time and was likely in denial. The following are a few common signs that Matthew will watch out for in the future:
· Preoccupation with the client. Matthew is not the first lawyer to become overly invested in clients and their personal problems. After all, we are humans first, and it is natural to feel empathy and compassion. If you find yourself thinking about a client on a frequent basis, perhaps worrying about his or her well-being—or if the client’s experiences have brought back painful memories and feelings from your own history—it’s most likely time to take a step back and ensure that the relationship is on the proper course. Perhaps an open dialogue with a trusted colleague would be beneficial. Always keep in mind that an attorney who crosses the professional/personal line may have difficulty remaining objective, which could negatively impact the decision-making process and jeopardize the case.
· Self-disclosure. In certain circumstances, attorney self-disclosure of personal information may help strengthen the relationship. For example, one of Cindy’s areas of practice was special-needs planning. She often told the parents of children with special needs about her own “special sister” to convey to them that she identified with their situation and could offer unique insight. Oversharing personal information, however, can lead to an unhealthy attorney-client relationship. Matthew now understands that while a mention of his abusive childhood may have deepened his professional bond with Sally, he crossed the line when he began providing details and discussing the emotional impact of the abuse.
· Inability to say a final “no.” Although Matthew knew the dangers of treading outside his areas of expertise, he allowed Sally to persuade him to represent her interests in bankruptcy court. His lack of experience could have led to an adverse outcome that probably would have damaged his professional relationship with her. Besides, we can only imagine the stress that he would have endured during the representation. Some clients will even ask their lawyer to commit unethical behavior. During Cindy’s 30 years of practice, she was asked on more than one occasion to backdate documents. Naturally, she outright refused. Unfortunately, many lawyers succumb to client pressure and find themselves in an ethical bind.
· Special fiscal arrangements. Matthew did not routinely take calls after hours and certainly billed for every moment spent on the phone—except with Sally. By not writing down his time, Matthew was cutting her a break on the bill. This behavior on his part can lead to a slippery slope. If the situation had continued, perhaps he would have given her additional discounts on her fees or even allowed invoices to go unpaid.
· Unrestricted or excessive availability. By engaging in after-hours contact with Sally, Matthew was affording her special access that was not extended to others. Certainly, there are circumstances in which attorneys need to have client contact during the evening or weekend. However, client contact during a lawyer’s personal time should be limited to emergent or unusual situations.
· Fantasies about a romantic relationship. Fortunately, Matthew and Sally did not become romantically involved, although they could have easily headed in that direction. This is good news from an ethical perspective because the relationship could have been in violation of American Bar Association Model Rule of Professional Conduct 1.8(j). Under this rule, “A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.” While it seems pretty obvious that sexual relationships with clients are strictly off-limits, each year a number of ethics cases are reported in which an attorney forgot or disregarded this basic rule of thumb.
Why Setting Boundaries Is Essential
Setting and maintaining appropriate boundaries benefits all parties in the attorney-client relationship. Below are a few of the reasons why enforcing healthy boundaries is a key component for successful advocacy and maintaining overall health and well-being:
· Safeguard mental health. Direct interaction with traumatized clients, long hours, and high client loads put lawyers at heightened risk of secondary trauma, burnout, and other mental health concerns such as depression and post-traumatic stress disorder. Recommended best practices for combatting the ill effects of compassion fatigue include setting boundaries, taking breaks from work, and prioritizing self-care.
· Maintain professionalism. Blurring the boundaries of our professional and personal lives can leave lawyers at risk of violating our professional ethics responsibilities. Indeed, adhering to appropriate boundaries with clients helps attorneys protect their professional reputations, avoid conflicts of interest, as well as promote objective decision-making and ongoing respect and trust in the attorney-client relationship.
· Improve case outcomes. Maintaining healthy boundaries with our clients helps us advocate to the best of our ability and fosters positive case outcomes. For example, clearly defining expectations about communication at the onset of the legal representation can benefit our overall productivity and ultimately boost client satisfaction.
How to Set Boundaries with Clients
As service providers, it can be tempting for lawyers to overextend themselves with clients, especially by maintaining communication on evenings and weekends. Practicing with no support staff, solo attorney Nick Zales has found that setting explicit expectations with clients about communication is key to maintaining his well-being and providing the highest level of service.
When Nick receives non-emergency communications from clients on weekends, he responds Monday morning, thanks them for their interest in the case, and lets them know that he does not work on weekends as he needs downtime in order to best serve them. “The key is to show them you are available in an emergency, but not 24/7. It has worked for me 99 percent of the time. Sometimes it takes a second contact. Absent that, I bill them for listening to their messages, and that usually puts a stop to that.”
Below are a few strategies to establish effective boundaries with clients and set yourself up for success in your law practice and your life:
· Implement a law firm communication policy. Be sure to clearly define your firm’s communication policy with clients early and often. For example, use the retainer agreement and initial client interview to set forth your firm’s policy for email and phone communications, including expectations for response times. You may also find it helpful to set automatic response emails, which can respectfully remind clients of these policies in real time.
· Be consistent. Communication protocols are only effective if we enforce them! After setting expectations with your clients, stick to your defined boundaries. For instance, if your policy is not to answer emails after 7:00 p.m., then don’t do it! Practice discipline and be consistent. Making haphazard exceptions to your communication policy will quickly erode expectations about your boundaries and may leave clients feeling confused and even disgruntled.
· Keep it professional. Focus on the clients’ legal needs and do not get involved in their personal affairs. Strive to be empathetic and actively listen to your client while still maintaining a professional distance. If clients share personal details beyond the scope of the matter, be respectful and acknowledge their feelings but remain focused on the case at hand. Refer clients to additional services, such as counseling, as appropriate.
· Practice mindfulness meditation. Practicing mindfulness meditation can help attorneys reduce stress, increase awareness, and improve mental clarity, all of which support our ability to maintain healthy boundaries with clients. Experiment with different mindfulness tools and techniques to find what resonates with you personally. Make technology your ally and set alerts on your devices to stretch and take a break. To maintain consistent practice over time, focus on building small mindfulness practices into your daily routine and making them habits. Remember, the positive effects of mindfulness meditation are cumulative, so the more you practice, the more you can reap the rewards.
If you are looking for additional strategies to integrate mindfulness into your everyday life and practice, email us at firstname.lastname@example.org, and we’ll forward you a copy of our Mindfulness Resources Guide for Attorneys.
Communicating and upholding healthy boundaries with a client helps establish a strong foundation for a professional and ethical relationship. Failure to enforce such boundaries can interfere with the attorney’s ability to act in the client’s best interest and can also jeopardize the lawyer’s well-being.
In next month’s column, we will offer our perspectives on the benefits, pitfalls, and ethical issues of ChatGPT.
Originally published in ABA GPSolo eReport, April 2023 Issue (Vol. 12, No. 9) by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.