ER 1.4 Communication
Reasonable communication between the lawyer and the client is necessary for the client to effectively participate in the representation.
ER 1.4 requires promptness with respect to informing, consulting, and responding to clients. Because expectations around promptness may vary depending on the client, the issue to be communicated, and the overall representation, the best practice is to set expectations at the engagement level, in terms of how and how often the lawyer will be in touch, taking into consideration client’s preferred method of contact. It is not unethical to reasonably limit client expectations, for example that “lawyer typically returns calls and emails within two business days” or “lawyer does not utilize text messaging for client communications.”
Yes! In fact, failures of diligence (ER 1.3) and communication (ER 1.4) are the most common client complaints about lawyers.
Yes. The best practice is to provide engagement letters at the beginning of a representation, setting out, at a minimum, the scope of the representation and the client’s financial obligations. This is also a great opportunity to set expectations for how and when clients will receive status updates.
The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued. Err on the side of over-communicating. A lawyer’s regular, proactive communication often minimizes client anxiety and the occasions on which a client will need to request information. While a lawyer may have authority to act to accomplish the client’s objectives for minor decisions and/or where there is exigency, contemporaneous discussion with client and mutual understanding is always best. Regarding settlement offers, the best practice, to ensure that the client or situation hasn’t changed, is to communicate any/all offers irrespective of whether client has previously indicated what offers will be accepted or rejected.
You may not provide client information to third parties absent client consent and it is always best to document any such consent in a writing signed by the client. Even where client has requested disclosure to third parties, a lawyer may limit such communications if the lawyer concludes that the client’s objectives will not be advanced by involving the third parties.
When representing an entity client, the lawyer should communicate with the individual(s) with appropriate decision-making authority within the organization.
A lawyer is responsible for keeping a client up to date on the status of a case. A busy lawyer can enlist the help of staff to make certain communications with clients; however, the lawyer is still ultimately responsible for ensuring adequate communication. As such, there should be a clearly defined office protocol for staff to follow in communicating with clients or responding to client inquiries. A staff member cannot give legal advice so if the answer to a client question calls for that, the lawyer must be the one responding.
If a client moves without leaving a forwarding address or fails to communicate with the lawyer, the client renders the representation “unreasonably difficult” and the lawyer may withdraw pursuant to ER 1.16(b)(5) and (b)(6). However, the lawyer must first use “reasonable diligence” to locate the client and inform the client of the lawyer’s intent to withdraw.
Clients have the right to choose their lawyer. A departing lawyer should communicate the departure not only to clients she has had a significant role in representing but also to any client who may base their decision on future representation on the involvement of the departing lawyer. A joint letter regarding the lawyer’s departure helps avoid the appearance of fighting over the client and preserves client choice. See Ariz. Ethics Op. 10-02 for additional guidance.
The best practice is to acknowledge the request the client has made and set a reasonable timeline for getting the information to the client. A lawyer should train and utilize staff for this purpose, as needed. And again, it helps to set a client’s expectations at the outset of representation for how quickly the attorney will try to respond to client inquiries and how often the attorney will reach out to the client to provide status updates.
In some instances, a lawyer may be justified in delaying transmission of communication when the client would be likely to react imprudently to an immediate communication. For example, a lawyer may withhold a psychiatric diagnosis from a client if the examining psychiatrist indicates the disclosure would harm the client. Additionally, a disclosure to client may be limited by rules or court orders governing litigation. A lawyer may not, however, withhold information to serve the convenience of the lawyer or another person.