Klein & Wilson

When Are Attorneys Required to Communicate With Clients?

New California Rule of Professional Conduct, rule 1.4 is packed with guidance on when lawyers must communicate with their clients. Before considering the details of the rule, put yourself in the client's position. If you hired a lawyer to handle a life changing event, when would you want the lawyer to communicate with you? Generally speaking, more communication is better in the attorney-client relationship. Few clients complain their lawyers provide too much information.

First, lawyers must "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." There are many rules that require "disclosure" and "informed consent," and it's best to familiarize yourself with all these rules. When in doubt - disclose. When client consent is required, make sure you determine whether the consent must be in writing. For example, if a conflict of interest arises in the attorney-client relationship, the lawyer must obtain "informed written consent" before proceeding. See rule 1.7.

Second, attorneys must "reasonably consult with the client about the means by which to accomplish the client's objectives in the representation." The standard of care requires attorneys to understand their clients' goals; otherwise, attorneys have no direction. Once the attorney identifies the client's goals, the attorney must determine the best way to communicate with the client (e.g., by phone, email, regular mail, etc.) and then explain to the client how the attorney will meet the client's objectives. In complex matters like civil litigation that last years and cost hundreds of thousands of dollars, the attorney should provide regular status reports and discuss necessary adjustments to the litigation plan as circumstances require.

Third, attorneys must "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." For instance, if the attorney is handling a transactional matter involving a zoning issue, and the local public entity passes a new law directly relating to the client's matter, the lawyer must inform the client of this new law and its impact on the matter. In litigation, the attorney should report the results of court hearings, material discovery responses and deposition testimony and settlement discussions. When clients ask for information and documents, provide it to them. One option for attorneys to consider is providing clients with copies of all material documents received or generated as a matter of course.

Fourth, attorneys must "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." For instance, let's assume you represent two clients. If one client asks you to take an adverse position against the other client, you must decline that request because the duty of loyalty prohibits you from complying with it.

Fifth, attorneys must "explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." Not all clients are created equal. Some clients are more sophisticated than others and don't need much explanation. Others need lengthy letters and meetings. Lawyers have the freedom to decide what each client needs to make good decisions. It's best to err on the side of providing detailed written analysis and reports. The one time you don't put important information in writing may come back to haunt you later.

Sixth, lawyers "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." In other words, if you think your report to the client will cause the client to commit suicide (or cause another harm), hold the report and talk to others (e.g., colleagues and the client's family) about options to proceed.

Finally, "[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." This means if you are prohibited from telling your client certain information, then don't make the mistake of thinking the attorney-client relationship overrides such a prohibition.

The way lawyers communicate with clients can make or break the relationship. I have seen lawyers skilled in the courtroom lose clients over how they communicated with clients. Similarly, I have seen mediocre lawyers build huge practices because they had phenomenal client communication skills.

Mark Wilson, a trial attorney, has won nearly every case he has tried or arbitrated. He lost only one jury trial and obtained a complete reversal on appeal. Mr. Wilson represents clients in business litigation and legal malpractice cases and was named in the 2018 SuperLawyers Top 50 Orange County list. Mr. Wilson is a California State Bar certified specialist in Legal Malpractice Law.

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