By Mark Bassingthwaihte, Esq.

              ABA Model Rule 1.4 Communication seems clear on its face. Attorneys are to keep clients reasonably informed about the status of their matters as well as to promptly comply with reasonable requests for information. Attorneys are to also explain a matter to the extent reasonably necessary to permit all clients to make informed decisions regarding their representation. Maybe I’m just not seeing it, but all this seems rather straightforward to me. If it were that simple, however, why do attorneys continue to face disciplinary complaints and malpractice claims in the numbers they do for simply failing to communicate? I believe, in part, it’s because many don’t fully understand what the rule is saying.

              I have found it helpful to analyze Rule 1.4 from a slightly different perspective than what’s commonly done, which is to take it at face value and focus on what needs to be communicated and when. We’re often told of the importance of returning phone calls in a timely fashion, forwarding copies of all relevant documents, providing regular and 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 important, I would like to come at the rule from the perspective of who gets to decide what.

              Beyond what is set forth above, Rule 1.4 also states that an attorney shall inform the client of any decision or circumstance that requires the client’s informed consent under the Rules. This brings Rule 1.2 Scope of Representation and the conflict rules into play. In addition, the Rule 1.4 tells us that an attorney 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. Rule 1.4 isn’t just about what an attorney thinks a client needs to know. It’s also stating that an attorney is to communicate all that a client reasonably expects to be told throughout the course of representation. There is real value in shifting the focus from what an attorney thinks should be shared and moving it toward what a client would reasonably expect his or her attorney to share. 

              With this in mind, what are the ramifications of Rule 1.4 day to day? Certainly, promptly returning phones calls, timely responding to client requests for information, forwarding copies of documents, and the regular sending of detailed bills are a given. But there is more. An attorney should keep clients informed of all court dates, all filings, and all offers to settle or mediate. Also, don’t overlook telling clients about any changes to your contact information such as a change in your address, phone number, or email. Yes, perhaps a shift in perspective wasn’t necessary to develop this list thus far; but I will share that many attorneys regularly struggle with following through on just these basics.

              Typical rationalizations or excuses include 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 the basics of effective communication. This can be a dangerous play.

              How could the above list of suggested communication best practices be expanded? Consider scope of representation. An attorney hired to handle litigation for a financial institution will understandably want to focus solely on the litigation. On the other hand, the client who has hired this attorney may be expecting the attorney to see the “big picture” and keep them informed about everything in play, to include issue spotting. What if there is a regulatory reporting and/or compliance issue peripheral to the litigation? If the attorney is not up to handling the related issue, she must say so because the client will often reasonably expect their attorney to not only issue spot, but to take care of the related matter or at least inform them of anything the attorney is not competent to or perhaps prepared to handle so that appropriate attention can be given to that peripheral issue. This is one reason why documenting scope of representation is critically important with all clients. Again, it is all about considering what clients would reasonably expect to be told.

              So, now we can expand our list of ramifications to include the following. 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 prior to any client agreeing to representation. Client permission should be sought and obtained for granting extensions of time to adverse parties, stipulating to evidence or testimony, agreeing to continuances, and for making and/or rejecting any and all settlement offers. Clients expect to be told when their matter has concluded and what, if anything, they must yet do. And whether through inability or oversight, clients must also be informed of a failure to act 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 regardless of whether it’s good news or bad.

              This shift in perspective helps keep the emphasis on the expectations of your clients. Remember it is you who is in their employ, and they are the ones who get to make many of the important decisions. This reality does not in any way, shape or form minimize your role as the attorney. In fact, I believe this perspective helps to elevate your 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 an attorney 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 does require you to approach communication from the client’s perspective. What clients expect to be told will vary with every client and every matter. Talk to your clients and try to determine their expectations from the outset. Ask yourself “what does the client need to know to be able to make intelligent decisions.” The bottom line is clients do expect to be fully informed, and attorneys have an ethical obligation to meet that expectation. Here’s the kicker, however. Your communication efforts must be handled in a way that seeks to ensure that the client understands and comprehends all that is being communicated about all that must be decided. Forwarding copies just doesn’t cut it.

              Of course, all of your communication efforts may be for naught if there is no contemporaneously made documentation of what was communicated by both you and your clients. Of particular importance is documenting any and all advice given, coupled with creating a record of the decision-making process. Note what information was shared with you that you based your advice upon and detail why you gave the advice you gave.  Also make sure you document what the client’s reasons were for making any decision made, especially if the decision was not entirely in line with the advice you gave.

              I’ve heard all kinds of excuses for why attorneys fail to follow through with thoroughly documenting all files along these lines.  “It isn’t necessary,” “It takes too much time,” “There are too many other things we have to do,” “The client would be offended if we did that,” and “We’re trying to keep costs down” are commonly shared. Just remember that’s all well and good until someone questions what you did or why you did it. Memories are short, yours included. Never forget the following. If you didn’t document it, it wasn’t said, or it didn’t happen. That’s how it often plays out in the world of discipline and malpractice.

Mark Bassingthwaighte, Esq. Is the resident Risk Manager at ALPS Insurance. To learn more about how ALPS can support your solo or small firm visit: alpsinsurance.com