February 2019

The Expansive New Rules on Client Communication

By David C. Carr

Law Office of David C. Carr

The Importance of Client Communication

Keeping clients informed of developments is one of the most critical information transactions an attorney undertakes.  It is at the essence of being an attorney.  It isn’t surprising a lack of communication is the single biggest complaint made to the State Bar of California, the government agency that regulates lawyers.

Rule of Professional Conduct 1.41 describes and defines additional duties involving client communication, and reflects the first significant new duties since an attorney’s duty to communicate was first separately defined more than 30 years ago.  Rule 1.4 also defines the first ethical limitations on an attorney’s duty to communicate. If you are a lawyer who represents clients (an attorney), then it is a rule you most definitely need to know.

Rules of Professional Conduct:  Floors Not Ceilings

Until recently, both rule (Rule Prof. Conduct 3-500) and statute (Bus. & Code §6068(m), described the three requirements that make up an attorney’s duty to communicate: (1) responding to reasonable status inquiries; (2) communicating significant developments; and (3) providing documents when reasonably necessary to communicate significant developments. It is important to understand these rules and statutes prescribe minimum standards for lawyer performance. An attorney’s fiduciary duty and good client relations might well demand more (Cal. Rule Prof. Conduct 1.0, comment 1:  rules intended to establish standards for discipline; cf. Mirabito v. Liccardo (1992) 4 Cal. App. 4th 41, 45: evidence of rule violation may support a finding of breach of fiduciary duty.)

New Rule 1.4 Expands the Duty to Communicate

The new Rules of Professional Conduct became effective November 1, 2018, as ordered by the Supreme Court. The new rules include Rule 1.4, which expands the attorney’s duty to communicate with the client in three significant ways.  The new rule also contains the first ethical limitations on an attorney’s duty to communicate
Rule 1.4 Communication with Clients
(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 clients’ 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.

New: Duty to Communicate Where Informed Consent Necessary

Rule 1.4(a)(1) imposes a duty to communicate where the informed consent of the client is necessary, as it is in many other contexts addressed by the Rules of Professional Conduct, principally in the rules regarding the attorney-client relationship.  Among many rules, it is a component of the rules prohibiting unconscionable fees (Rule 1.5(b)(13)), dividing fees among lawyers (Rule 1.5.1), protecting client confidences (Rule 1.6(a)), conflicts between current clients (Rule 1.7(a)), business transactions with clients (Rule 1.8.1(c)), payment of fees by a third party payor (Rule 1.8.6(c)), aggregate settlements (Rule 1.8.7(a)), duties to former clients (Rule 1.9(a)), conflict rules for government lawyers (Rule 1.11(d)(2)(i)), and duties owed to prospective clients (Rule 1.19.)

Informed consent is so important that the Rules of Professional Conduct define it with specificity: “Informed consent means a person’s agreement to  a  proposed  course  of conduct  after  the  lawyer  has  communicated  and  explained  (i)  the  relevant circumstances  and  (ii)  the  material  risks,  including  any  actual  and  reasonably foreseeable adverse consequences of the proposed course of conduct.  The informed consent documents that lawyers proffer to their clients often fall short of this specificity, especially those based on “boilerplate” provisions.  Truly effective informed consent documents require a commitment of time and thought from the lawyer that is too often lacking.

New: Duty to Communicate Limitations on Attorney Conduct

Rule 1.4(a)(4) serves a similar purpose but is not limited to informed written consent. The lawyer has a duty to communicate all limitations on the lawyer’s conduct prescribed by the rules where the attorney knows the client expects help that cannot be ethically provided, beyond those curable with the client’s informed written consent.  A lawyer may not accept or continue employment where the client is seeking to utilize the lawyer’s services in litigation without probable cause and for the purpose of harassing or maliciously injuring any person (Rule 1.16(a).)  A lawyer may not make a false statement to a tribunal, or offer false evidence (Rule 3.3(a)); a lawyer must offer all material evidence in an ex parte proceeding (Rule 3.3(d).)  A lawyer may not suppress or obstruct another party’s access to evidence (Rule 3.4.) The rule essentially says a client must be told a lawyer cannot engage in dirty tricks.  But, in conjunction with Rule 1.16(a)(3), it also means the lawyer has a duty to communicate to the client where the lawyer’s mental or physical condition renders it unreasonably difficult to carry out the representation effectively.

New: Duty to Communicate Regarding Means to Fulfill Client Objectives

Rule 1.4(a)(2) requires the attorney to “reasonably” consult with   the   client   about   the   means by which to accomplish the client’s objectives in the representation.  It effectuates the principal stated in new Rule 1.2(a), which requires a lawyer to abide by a client’s decisions concerning the objectives of representation, including settling the matter, and to consult with the client as to the means by which the objectives are to be pursued. This might seem obvious, but there have been instances where attorneys have become confused and believed the representation was about meeting their objectives, not those of the client.

New: Limitation on Communication Where Client May Take News Badly

As discussed, more communication is almost always better, and part of “more” and “better” may include more timely communication, but not always. Rule 1.4(c) allows a lawyer to delay the communication of significant developments if those developments would likely cause the client to react in a way that might cause harm to others.  Note that Rule 1.4(c) doesn’t permit the concealment of sensitive information, only a delay in transmission.  This rule may be of most use to practitioners in family law or criminal defense cases, areas where the transmission of bad news is not a rare event.

New Limitation on Communication Where Information Protected by Order, Statute or Contract

Finally, Rule 1.4(d) authorizes an attorney to withhold information the client is otherwise entitled to where that information is protected by court order, contract or statute.  An example is an order obtained under Penal Code section 1054.7(b) to withhold otherwise discoverable information from a criminal defendant, such as the identity of a witness where the disclosure might put the witness’s life at risk.

Conclusion

New Rule 1.4 raises the stakes on the already critical function of communicating effectively and timely with clients.  Communications regarding informed consent and limitations on a lawyer’s conduct are now potential discipline matters. 

In the digital age, even reproval-level discipline, the lowest level of discipline, can have a big impact on a lawyer’s practice.  Discipline records are widely available through internet searches, and clients do perform such searches.  Not long ago, a client reported to me that new business was off 50 percent after the attorney’s public reproval appeared online. Familiarity with the new communication rule – and all the new Rules of Professional Conduct – is essential.

1. Previously Rule of Professional Conduct 3-500.