RPC Rule 1.4 Communication is one of those rules that seems so clear on its face.  Everyone is well aware that a lawyer is to keep a client reasonably informed about the status of a matter as well as to promptly comply with reasonable requests for information. There’s nothing messy there.  And most also know that the rule further states that a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Maybe I’m just not seeing it, but all this seems rather straight forward to me.  Then again, if this is such an easy rule to comply with, why do attorneys continue to face discipline and malpractice claims in the numbers that they do simply for failing to communicate?  Unfortunately, I think it’s one of those “it’s all in the details” kinds of things and perhaps there’s more to the rule than what is generally remembered.

As I consider the implications of this rule, I have found it helpful to analyze the rule from a slightly different perspective than most.  So often, what we remember the rule as saying is taken at face value and discussed from the perspective of what needs to be communicated and when.  One often hears of the importance of returning phone calls in a timely fashion, forwarding to the client copies of all relevant documents, providing regular detailed billing, and personally visiting with the client to explain the status of a matter sufficient to allow the client to make informed decisions when deemed necessary.  While all of this is quite important, I would like to come at the rule from the perspective of who gets to decide what.  This helps me keep roles straight and remember who has employed who, which is key given other language in the rule which isn’t as often recalled.

Beyond what is set forth above, Rule 1.4 also states that a lawyer shall inform the client of any decision or circumstance that requires the client’s informed consent under the Rules.  Now, Rule 1.2 Scope of Representation comes into play as does several conflict rules at a minimum.  In addition, a lawyer is to reasonably consult with the client about the means by which the client’s objectives are to be accomplished.  For me, this language shifts the emphasis of the rule from what do I as the attorney think the client needs to know in order to stay abreast of the status of the matter to what would my client reasonably expect to be informed about throughout the course of representation.   I believe there is value in shifting the focus away from what the attorney thinks should be shared and toward what a client would reasonably expect to be told. 

Given this different perspective, what then are the ramifications of this rule day to day for the practicing attorney?  Certainly promptly returning phones calls, timely responding to client requests for information, forwarding copies of documents, and regular detailed billing are a given.  An attorney should also keep clients informed of all court dates, all filings, and all offers to settle or mediate.  Also, don’t overlook telling clients about changes to your contact information such as a change in your address or phone number.  Yes, perhaps a shift in perspective isn’t necessary to develop this list thus far; but I will share that many attorneys regularly struggle even with the above.  Typical rationalizations or excuses become the client doesn’t really need to be bothered with this, I know what my client will say or decide anyway, I don’t have the time to tell them, the client doesn’t want to be billed for the time it will take, etc.  In short, attorneys start to run with assumptions and rationalizations when it comes to even the basics of good communication and that can be dangerous.

Now, with the shift in focus in mind, how might our list of suggested practices expand?  Consider scope of representation.  As an attorney being hired to handle litigation for a financial institution, it is easy to understand how an attorney will focus solely on the litigation.  The client on the other hand has hired an attorney and expects the attorney to see the “big picture” and keep them informed to include things like issue spotting.  Perhaps there is a regulatory reporting and/or compliance issue in play or that might come into play down the road.  If the attorney is not up to handling the related issue she must say so.  The client will expect their attorney to issue spot and handle the matter or at least inform them of anything that the attorney is not competent to or perhaps prepared to handle so that appropriate attention can be given to that related issue.  This is one reason why documenting scope of representation is critically important with all clients. 

With this shift in perspective in mind, we can now expand the list as follows.  Clients should be told what the scope of representation is and also what it isn’t; they should be informed of their rights, especially in criminal matters; the ramifications of any actual or potential conflict issues should be fully explained to the client/s prior to their agreeing to representation; client permission should be obtained for granting extensions of time to adverse parties, stipulating to evidence or testimony, agreeing to continuances, making and/or rejecting settlement offers, and the like.  Clients expect to be told when their matter has concluded and what, if anything, they must yet do.  Whether through inability or oversight, clients must also be informed of a failure to take action on the client’s matter or that their case has been dismissed.  Clients do reasonably expect to be informed about any and all of the above.

When thinking about communication, this shift in perspective keeps the emphasis on the client and the fact that we, as the attorney, are in the client’s employ.  Many decisions are for the client to make.  I am not in any way, shape or form trying to minimize the role of an attorney.  In fact, I believe this perspective helps to elevate the attorney’s role.  Consider the word “counselor” in light of Rule 1.4 and ask yourself what might that word mean in daily practice?  For me it means that a lawyer is to advise the client about the legal and practical aspects of any given matter.  She is to identify and evaluate alternative solutions pointing out the positive and negatives of each.  The goal is to enable the client “to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued.” (See Comment 5 to Rule 1.4 of the ABA Model Rules.)  This intended outcome requires that we approach communication from the client’s perspective.  What does the client need to know to be able to make intelligent decisions?  If this question is not ever asked and answered by the attorney with every client, she is taking an unnecessary risk that can and will at times lead to disastrous outcomes in the malpractice and disciplinary arenas. 

Let’s take this point one step further.  Consider that you have taken on a regular run-of-the- mill divorce client.  Should you discuss the option of conducting electronic data discovery?  A number of attorneys simply never raise the issue.  Some don’t see the need, some see it as cost prohibitive, and some simply have no idea how to do it and/or no intention of ever going there in their own practice.  Focus on the client.  Haven’t these attorneys actually made a decision that belongs to the client?  I would argue that indeed they have and I can see a time in the not too distant future when an attorney reviewing the eventual outcome will describe just such a situation as “well what we have here is a failure to communicate” and now there’s a problem.

I can’t create a list of everything that an attorney should tell a client.  I can only give you examples of things to think about and a perspective from which to begin to address the issue.  What clients expect to be told will vary with every client and every matter.  Talk with your clients and determine from the outset what it is they want in terms of communication.  The bottom line is this.  Clients always do expect to be fully informed and attorneys have an ethical obligation to meet that expectation; and here’s the kicker, your communication efforts must be handled in a way that seeks to assure that the client understands and comprehends all that is being communicated.  Forwarding copies isn’t enough.  This is how a jury will review it.  So, once again, it’s all in the details.