Marshall Goldsmith tells the story of the $5,000 email on his blog. This is the one email sent to a lawyer by a client which ends up costing the client $5,000. It is all part of a general warning encompassed in a book published in the States and the UK highlighting email etiquette and email disasters called: Send: The How, Why,When -and When Not - of Email by David Shipley and Will Schwalbe.
Goldsmith explains: “ Whenever someone writes an e-mail that says, "Do you think we should get a legal reading on this?" it costs the firm $5,000, because that's the price of a legal read. And once someone poses the question on e-mail, the firm feels obligated to go through with one, whether justified or not. If they don't, and there's a problem later, that e-mail could be used as powerful evidence against them.”
Of course, this would never happen in England, you think. It’s those rapacious US lawyers, who bill for every second they spend thinking about a client’s case, whether they are in the bath, on the train or in the office.
But the fact is that it probably does and the ease of email has become the main cause of confusion between clients and solicitors.
Let’s assume LloydLaw has got an existing client for whom we do regular work. There’s no central point of contact and the client’s employees take it upon themselves to contact us about legal issues.
Then I get an email with a very large Word document attached which simply says:
“Can you look at this and let me know if there are any problems”.
Sometimes, if I am lucky, someone might write “Hi Mark” or give me some idea of when they expect a response other than “asap”, but more often than not, this is what I have to work with.
Bear in mind, I have never seen the Word document before and I have no idea what’s going on. I could therefore very easily open the document (which is invariably a draft legal agreement) read through it and produce a detailed note on the legal issues and the potential “problems”. This would obviously be a relatively academic exercise, but in order to ensure I cover all the potential problems (and that I cover myself) this is going to have to be a fairly thorough examination. Assuming that I am working on an hourly rate basis, you can appreciate that this piece of work (which I suspect is akin to a legal “reading” which I take to be a US term) is going to take a few hours, not counting the administration involved in opening a file and other formalities, and it will cost the client a fair amount of money for what is essentially a “review”.
In reality, what I do when I get that email (or one like it) is phone the client and ask them to explain what the background is, what the timetable is, how much money is involved and is there anything that particularly concerns them. This is what is known as “taking your client’s instructions”. Arguably, I don’t have to do that. I can simply take that email as “instructions” and then proceed with the detailed analysis, but the more information you have the easier it is to advise a client. You can also discuss issues like timings and potential cost.
What’s critical here is that most clients would prefer you spent as little time on the matter as possible, at the same time as highlighting the critical issues. I make no complaint about that, but it does represent one of the challenges of being a lawyer. There’s a fine line between doing a job quickly and efficiently at a reasonable fee and getting it completely wrong because you were in a rush. If you are doing a job properly, then the analysis and the expertise will cost money. The important point, and it isn’t clear in the Marshall Goldsmith story, is whether the client knows it will be getting a bill for $5,000 or not. Even if it doesn’t then is it reasonable to infer that by sending that email it has incurred the liability for the legal fees.
The obvious point is not just acknowledging that sending emails is too easy, but making sure that both parties understand what the lawyer is being asked to do, what the client needs to do to give the lawyer the necessary help and assistance and how much it will all cost. Otherwise, we will be reading stories about the £5,000 email - as yet another example of how not to do things.
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