Communication with clients (Rule 1.4)

Special Coverage

PROPOSED RULES OF PROFESSIONAL CONDUCT

The hallmark of any healthy attorney-client relationship is trust. With it, attorney and client work collaboratively and efficiently toward a common goal. Without it, clients may be less receptive to their lawyers' suggestions and may not furnish all of the information their attorney needs to provide the best advice or services. In trying to attain the former and avoid the latter, lawyers and clients, who in many instances may not have even met before the client develops a need for legal services, must develop trust. One of the vehicles to do so is through frequent and honest communication. It is therefore logical, that lawyers have an ethical duty to communicate.

In California, that duty is currently set forth in Rules of Professional Conduct, Rule 3-500. The provision is cast in relatively broad terms that are likely intuitive to most practitioners. Lawyers must keep their clients "reasonably informed about significant developments relating to the employment or representation," including by responding promptly to "reasonable requests for information" and providing copies of "significant documents when necessary to keep the client so informed." The beauty of the rule is that its broad wording can be applied to provide some guidance to any representation. But the dearth of specific direction sometimes creates a beast of a problem in figuring out precisely what and how much information lawyers must transmit.

Proposed Rule 1.4, which the State Bar of California recently sent to the Supreme Court, maintains the concepts of Rule 3-500. In fact, the proposed rule does set forth nearly the same language as Rule 3-500.

But it also more distinctly articulates what lawyers need to do to satisfy their ethical duties of communication in certain circumstances. Several of the additions should help manage expectations. Rule 1.4 provides that attorneys must both promptly inform their clients of any decision or circumstance that they are ethically required to disclose in writing or to obtain informed consent for and to advise the client of any ethical limitation on the lawyer's conduct when the lawyer knows the client expects assistance that may be ethically restricted. Put another way, the rule supports the proposition that it may be just as important for clients to know what their lawyers cannot do for them, as it is to know what they will do.

Further, Rule 1.4 mandates that attorneys reasonably consult with their clients about the means employed to achieve objectives. Such a standard should help avoid situations where a lawyer's tactics may be unpalatable to a client. These can occur even by virtue of mistake, such as where some impact is foreseeable to the client, but not to the attorney, who has less information about the facts or personalities involved. Although lawyers work hard to learn about their clients' matters so that they can advise them as best as possible, the clients will almost always have a better understanding of the dynamics of the situation. By adopting these communicative practices, lawyers and clients should be in a good position to trust one another because they have a common understanding of exactly what will be done to pursue the clients' goals, and in applicable circumstances, what cannot be done.

Moreover, Rule 1.4 reminds lawyers what "communication" is. In 1950, William H. Whyte observed that the great enemy of communication is the illusion of it. The rule confronts this enemy by acknowledging that communicating with clients is more than just providing information; the information should be understandable. Specifically, Rule 1.4 provides that a lawyer must explain matters to the extent reasonably necessary for clients to make informed decisions about their representation. More simply, when communicating with their clients, lawyers should write to be understood and speak to be heard.

Of note, Rule 1.4 does not provide for an absolute duty to communicate. Rather, the rule provides that attorneys may delay providing information if they reasonably believe that the client may react in a way that will cause imminent harm to the client or others. And, under the proposed rule, there is no duty to transmit information or documents where doing so would violate a protective order, a non-disclosure agreement, or a statutory or decisional law limitation.

Ultimately, lawyers and their clients both benefit from clear communication. It helps them develop trust in one another and gives them the best chance of making the right decisions to achieve client goals. Proposed Rule 1.4 facilitates these efforts by clarifying what is expected to satisfy the ethical duty to communicate.

Rule 1.4 Communication with Clients

(Proposed rule adopted by the board Nov. 17, 2016)

(a) A lawyer shall:

(1) promptly inform the client of any decision or circumstance with respect to which disclosure or the client's informed consent,* is required by these rules or the State Bar Act;

(2) reasonably* consult with the client about the means by which to accomplish the client's objectives in the representation;

(3) keep the client reasonably* informed about significant developments relating to the representation, including promptly complying with reasonable* requests for information and copies of significant documents when necessary to keep the client so informed; and

(4) advise the client about any relevant limitation on the lawyer's conduct when the lawyer knows* that the client expects assistance not permitted by the Rules of Professional Conduct or other law.

(b) A lawyer shall explain a matter to the extent reasonably* necessary to permit the client to make informed decisions regarding the representation.

(c) A lawyer may delay transmission of information to a client if the lawyer reasonably believes that the client would be likely to react in a way that may cause imminent harm to the client or others.

(d) A lawyer's obligation under this rule to provide information and documents is subject to any applicable protective order, non-disclosure agreement, or limitation under statutory or decisional law.

Comment

[1] A lawyer will not be subject to discipline under paragraph (a)(3) of this rule for failing to communicate insignificant or irrelevant information. (See Bus. & Prof. Code § 6068(m).) Whether a particular development is significant will generally depend on the surrounding facts and circumstances.

[2] A lawyer may comply with paragraph (a)(3) by providing to the client copies of significant documents by electronic or other means. This rule does not prohibit a lawyer from seeking recovery of the lawyer's expense in any subsequent legal proceeding.

[3] Paragraph (c) applies during a representation and does not alter the obligations applicable at termination of a representation (see rule 1.16(e)(1)).

[4] This rule is not intended to create, augment, diminish, or eliminate any application of the work product rule. The obligation of the lawyer to provide work product to the client shall be governed by relevant statutory and decisional law.