Ethics in Brief

Ethics in Brief is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association.


Proposed Rule 1.4 Provides Specific Ethical Standards For Communicating With Clients 

It’s almost official. Now that the California Board of Trustees has adopted the proposed new and amended Rules of Professional Conduct, approval by the California Supreme Court is all that is required before California lawyers are subject to a number of new or substantially revised rules, including Proposed Rule 1.4 [Communication with Clients]. This Rule will replace Rule 3-500 [Communication] and its approval will create specific ethical obligations for California lawyers when communicating with their clients.

When the Second Commission for the Revision of the Rules of Professional Conduct drafted Proposed Rule 1.4, it maintained most of the language of Rule 3-500, and also incorporated much of the text of the ABA Model Rule 1.4. The result is a rule that is “intended to enhance public protection by more clearly stating a lawyer’s obligations to clients with regard to communication.” (Executive Summary for Proposed Rule 1.4, State Bar of California Second Commission for the Revision of the Rules of Professional Conduct (Oct. 2016).)

This article summarizes some of the important provisions of Proposed Rule 1.4.

Imposes a Duty to Communicate Regarding a Client’s Representation Objectives

Proposed Rule 1.4 imposes a duty to communicate regarding a client’s representation objectives. The Proposed Rule states that a lawyer “shall reasonably consult with the client about the means by which to accomplish the client’s objectives in the representation.” (Emphasis added.) (Rules of Prof. Conduct, Proposed rule 1.4(a)(2).) This duty serves to strengthen the communication between a lawyer and client by encouraging them to reach a common understanding for how, exactly, the client’s desired outcome will be pursued during the representation.

Imposes a Duty to Inform the Client About Any Ethical Limitations the Attorney Faces

In the event the client’s objectives would require a lawyer to take action not ethically permitted, Proposed Rule 1.4 imposes a duty to inform the client about any relevant limitations the lawyer faces “when the lawyer knows that the client expects assistance barred by the Rules of Professional Conduct or other law.” (Rules of Prof. Conduct, Proposed rule 1.4(a)(4).) This information, while potentially challenging to relay, also serves to strengthen the communication between a lawyer and client by making the client aware of what the lawyer can and cannot do during the course of the representation.

Imposes a Duty to Explain a Matter to a Client So the Client Can Make Informed Decisions

Proposed Rule 1.4 also imposes a duty to explain a matter “to the extent reasonably necessary to permit the client to make informed decisions” about the representation. (Rules of Prof. Conduct, Proposed rule 1.4(b).) This requirement encourages clients to intelligently participate in decisions concerning their objectives and the methods by which they are being pursued. What constitutes an adequate amount of explanation, however, will likely be unique to each client, given the differences of each case and the type of legal representation that is involved.

Duty to Promptly Inform the Client When Written Disclosure or Informed Consent is Required

Proposed Rule 1.4 also imposes a duty to promptly inform the client when written disclosure or informed consent is required. The Proposed Rule states a lawyer shall “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 Act.” (Rules of Prof. Conduct, Proposed rule 1.4(a)(1).) Here again, the duty serves to strengthen communication between a lawyer and client by barring an attorney’s delay in advising a client about important matters, such as settlement offers in civil and criminal cases.

It is noteworthy, that the duty to communicate under Proposed Rule 1.4 is not absolute. Indeed, the Rule acknowledges that there may be times when a lawyer is justified in delaying transmission of information to a client where the lawyer “reasonably believes that the client would be likely to react in way that may cause imminent harm to the client or others.” (Rules of Prof. Conduct, Proposed rule 1.4(c).)

In summary, Proposed Rule 1.4 strengthens the communication between a lawyer and client by identifying specific ethical obligations that lawyers have when communicating with their clients. The emphasis of the rule is greater protection for the client. Paying close attention to the mandates of Proposed Rule 1.4 not only provides clients greater protection, but also provides greater protection for your bar card.

-- Alara T. Chilton

**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.**