The Duty to Communicate — A Two Way Street

Rule of Professional Conduct 1.4, effective now for a year, has made explicit some duties never stated in former rule 3-500. The new portion of the rule calls for a conversation between lawyer and client about the tripartite relationship among: (1) the client’s objectives; (2) the means the lawyer has available to achieve them; and (3) the resources—financial as well as personal—the client can devote.

Rule 1.4 (a)(2) requires us to “reasonably consult with [our] client about the means by which to accomplish the client’s objectives in the representation.” Rule 1.4 (a)(3) restates former rule 3-500’s obligation to keep the client reasonably informed about significant developments in the representation and promptly meet the client’s reasonable requests for information and significant documents necessary to keep the client reasonably informed—with which we’re all familiar.

Common sense suggests that effective representation means learning the client’s goals before racing ahead. Rushing off blindly only leads a lawyer to the predicament: “When you’re up to your armpits in alligators,  that’s not the time to remember the task was simply to drain the swamp!” The new rule 1.4 (a)(2), however, has a lawyer to do more.

The obligation is reasonably to consult with our client about the means to accomplish the client’s objectives in the representation. Thus, the rule seems, at a minimum, to require a lawyer/client dialogue that includes not only the client’s goals, but also the reasonably available means at hand for the lawyer to try to reach those goals—given the reality of the representation—as well as the resources the client can reasonably devote to the exercise.

This has several components. First, as a good friend and experienced litigator recently said: “The client’s facts are not my facts; I have to work with the facts I’m given, but the client has to own the facts.” Thus, a critical part of this “objectives-means-resources” conversation triggers our duty of candor to the client. We are our clients’ stewards, their advocates, their champions; but, if the facts are inconsistent with the client’s objectives in the representation, candor demands telling the client the bad news. A delicate balance, perhaps, but one we must strike. Even if the client will not accept reality, a lawyer must try.

For example, if a client is a defendant in a law suit, where three immutable bad facts will almost assuredly come into evidence—the client’s wish for “a complete victory” and a finding of “innocence” notwithstanding—a lawyer must make clear that good lawyering cannot make bad facts disappear; at best, a skillful trial lawyer may minimize their impact. Thus, the “reasonably consulting” of rule 1.4 (a)(2), as well as keeping a client “reasonably informed” of rule 1.4 (a)(3) both appear to include counseling the client to align the client’s objectives with the reality of the facts and law.

Once lawyer and client are clear about, and have agreed on, the representation’s objectives—hopefully, taking reality into account—the inquiry turns to rule 1.4 (a)(2)’s “means by which to accomplish” those objectives. The new rule posits a direct relationship between the means the lawyer will employ and the client’s objectives. To return to our example, if the client finally accepts that bad facts may dominate aspects of the client’s case, and “a complete victory” is out of the question, the client’s objectives may turn to diminishing the impact of those facts if possible and focus on limiting damage exposure.

That moves the conversation to the “means to accomplish” these objectives. Perhaps, pre-trial discovery will be more targeted than it otherwise might—bad facts don’t go away—discovery disputes minimized or even conceded when not consistent with the “means” to accomplish the client’s objectives; perhaps a focus on the damages portion of the case; even early settlement discussions.

“Means by which to accomplish the client’s objectives,” however, do not exist in a vacuum. Means to be employed and the resources to be devoted to the representation have to be balanced. Resources, further, include not only the ability to finance the representation; they also implicate, among other considerations, the client’s time; the client’s health and emotional ability to withstand whatever struggle the representation might entail; and the client’s reputation—in addition to financial resources.

If, for example, the client in the litigation mentioned above is a highly skilled professional—a prominent surgeon, architect or musician—the client’s time and energy may be a critical client resource the lawyer should take into account in developing means appropriate to accomplish the client’s goals. Similarly, the client may prize reputation and future reputational harm over short-term expense. For another client, litigation may be so taxing that the emotional drain will temper or even dictate the means available to achieve the client’s goals.

Thus, communication under rule 1.4 (a)(2) appears to entail discussing with the client—while taking the client’s circumstances into account—what “means” in the lawyer’s professional judgment, consistent with the client’s resources, will best advance the client’s objectives given the reality of the representation. This conversation should occur at the beginning of the representation. The lawyer should also consider repeating it if  “significant developments related to the representation” alter the client’s objectives, the client’s resources or the means the lawyer then has available to employ. Thus begins a continuing lawyer-client dialogue critical to the relationship.

Edward McIntyre is a professional responsibility lawyer and co-editor of San Diego Lawyer

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**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**