One of the most challenging skills to master as a lawyer is communication with a client and opposing counsel. When learning this skill, many lawyers often advise associates or colleagues to write as if the email or letter would be read by a respected family member who has high expectations of decorum and politeness.
But what does this mean for a lawyer who received an upsetting email or letter, and their knee-jerk reaction is to rant and react to the communication? California Rules of Professional Conduct, rule 1.4 provides guidance, but some lawyers still ask how this translates into their daily practice.
Rule 1.4(a)(1-4) states that a lawyer “shall” comply with this rule, meaning that compliance with rule 1.4(a) is required of all lawyers licensed to practice law in California. These four areas involve decisions requiring client consent, communication of means to accomplish a client’s objectives, communication of significant developments, and advising a client about limitations in the representation due to the Rules of Professional Conduct. Below I provide real world examples of each of these required communications.
Rule 1.4(a)(1) requires a lawyer to promptly inform a client of a decision or circumstance that requires either consent or disclosure. Promptness is a key element of this rule but is not clearly defined. “Prompt” does not necessarily mean that the communication must happen within minutes or hours of the need for client input — it allows for an attorney to spend some time understanding the issue and/or reviewing documents prior to sharing the communication with the client. Neither the Rules of Professional Conduct nor case law clearly define “prompt” as a specific unit of time. Sometimes prompt can mean within 24 hours, and sometimes prompt can mean within a business week, depending on the issue.
Example: a client is waiting for a settlement offer where opposing counsel says it must be agreed to within 48 hours. Notifying a client within hours would meet the prompt standard. But waiting 40 hours may not meet the prompt standard if 8 hours doesn’t allow the client enough time to consider their options regarding the offer. Other times, waiting a full business week may meet the prompt standard if the attorney must first engage in significant legal research to prepare for the additional consultation needed to obtain consent. (See rule 1.4(a)(2)).
Rule 1.4(a)(2) includes a reasonableness standard to consult with a client regarding the means by which the attorney will accomplish the client’s objectives. This can be very tricky for a lawyer to navigate, as some clients want to be involved in or informed of every aspect of their case, while other clients wish to hand their case off to their attorney and be contacted only when absolutely necessary. Better practices encourage an attorney to communicate to the client how the attorney intends to accomplish their client’s goals, and a possible timeline to complete the representation or specific legal goal.
In my practice, I routinely share drafts of my work product, because my clients are attorneys who often have an interest in the document that I’m writing on their behalf. In other representations, a lawyer may meet this duty by first sharing with the client an outline of steps in their case, and then having as-needed communications as the representation progresses. Better practices discourage little to no communication with the client for the duration of the attorney-client engagement. The most common client complaint is that their attorney never communicated with them or was unavailable.
Rule 1.4(a)(3) requires an attorney to keep a client reasonably informed about significant developments relating to the representation. A significant development generally does not require a client’s informed consent, but the development can necessitate a disclosure. Significant developments can include status conferences, trial timelines, a change in lead counsel, or scheduling of depositions — including depositions your client doesn’t need to attend.
This rule applies a reasonableness standard, meaning that every email the attorney receives about a client’s case need not be shared with the client. Think of the emails in a rapid exchange between yourself and opposing counsel, for example: those communications may have only a small bit of information that is significant to the case. Better practices call for sharing copies of letters, filed documents, and emails with opposing counsel or third parties involving substantive information.
Rule 1.4(a)(4) requires an attorney to advise their client of situations where the attorney’s duty to comply with the Rules of Professional Conduct would prevent them from proceeding with the client’s goals of the representation. It may seem obvious that lawyers can’t violate their ethical duties in a representation, such as in a case where a client wishes to file a frivolous claim or asks a lawyer to advise on how to break a law.
But in reality, compliance with rule 1.4(a)(4) may not be so clear, because representation evolves, and an ethical quandary may not be immediately apparent to the attorney. Mid-representation, an attorney may discover that their client’s objectives were in fact nefarious and placed the attorney in a situation where continuing the representation or pursuing a portion of the client’s goals creates an ethical problem. Other times, the issue is not immediately apparent until the attorney receives a letter from opposing counsel demanding the attorney not continue down a certain path because there is a conflict of interest or the legal goals may violate another statute. These types of situations often require the lawyer to spend significant time researching the issue, and then figuring out possible solutions prior to discussing with a client.
Finally, good communication with one’s client and third parties is a foundation for a healthy attorney-client relationship, and can often prevent unhappy clients or confusion regarding the representation. Below are better practices that can improve your law practice but are not necessarily required by the Rules of Professional Conduct.
- Try to respond to client communications within 24 to 48 hours, even if the communication is, “Received and I will more fully respond as soon as I can.”
- Before responding to an angry or aggressive opposing counsel, ask yourself, “How will my response further my client’s interest?” If you determine that a response is necessary, try not to respond with the same level of anger. I generally recommend a waiting period of 24 hours prior to drafting a response to an angry email — and longer if you are particularly angry or need to more carefully consider what you wish write.
- Not all communications from opposing counsel require a response. Sometimes angry emails are better left alone, because the email or letter doesn’t include anything substantive to the matter. Remember responding may not advance you client’s interests — and sometimes a lack of response is your best form of communication.
- When dealing with an upset client, keep your response to the client calm in tone, and avoid using language that can escalate the situation — like calling your client a liar, for example, or making counter-accusations.
- Avoid using abusive, insulting, or derogatory language in emails or letters, as these documents can be used as evidence in a malpractice claim, a motion for sanctions, or a State Bar disciplinary investigation. While this advice may seem obvious, the practice of law is often personal, and attorneys can feel attacked by our clients, opposing counsel, or even neutrals. But reducing that anger to writing and sharing it with others can absolutely come back to cause embarrassment — or worse yet, lead to sanctions, discipline, or malpractice claims.
Mary Grace Guzmán of Guzmán Legal Solutions advises lawyers, law firms, and law students on their professional responsibilities and risk management needs. She also teaches legal ethics and professional responsibility at JFK Law School. She works with lawyers and law firms regarding legal ethics issues such as conflict of interest issues, fee disputes, and advises lawyers and law firms as outside ethics counsel to manage risk. Ms. Guzmán recognizes that a lawyer’s or law firm’s needs are best met by preventing legal ethical issues before they arise or managing an ethical issue once identified.