Vol. 84, No. 6, June 2011
I have often heard that failure to communicate with a client is one of the main reasons for grievances filed with the Office of Lawyer Regulation. What are lawyers’ obligations under the Rules of Professional Conduct with respect to communication?
We often speak about the obligation of a lawyer to obtain informed consent from a client when making decisions about the representation. This obligation is found in SCR 20:1.4(a)(1), which provides the following:
“A lawyer shall:
“(1) Promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in SCR 20:1.0(f), is required by these Rules. …”
While informed consent is a new standard that requires a discussion with the client of the available alternatives and the consequences of the client’s decisions, grievances more often arise because of the lawyer’s failure to communicate in a timely manner with a client. These concerns about communication are addressed in other parts of SCR 20:1.4.
SCR 20:1.4(a)(2), (3), and (4) outline the lawyer’s responsibilities to communicate with a client.
“SCR 20:1.4 – Communication.
“(a) A lawyer shall:
“. . .
“(2) Reasonably consult with the client about the means by which the client’s objectives are to be accomplished;
“(3) Keep the client reasonably informed about the status of the matter;
“(4) Promptly comply with reasonable requests by the client for information; …”
Dean R. Dietrich, Marquette 1977, of Ruder Ware, Wausau, is chair of the State Bar Professional Ethics Committee.
It is clear these rules say something very simple – tell your client what is happening with regard to your representation, and respond promptly to your client when asked for information or an update. This often is harder to do than it sounds, but communicating with the client about the representation and responding to client inquiries are key aspects of the attorney-client relationship and are the best way to create a bond of trust between the lawyer and the client.
There is no minimum standard or requirement in the Rules of Professional Conduct that you must respond to a client inquiry within a certain number of hours or must contact a client about certain decisions related to the representation but not others. The Rules of Professional Conduct, in many instances, are not a minimum standard but rather are a declaration of reasonable expectations that the lawyer must follow and comply with.
SCR 20:1.4(b) also provides the following guidance:
“(b) A lawyer shall explain the matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”
This again accents the need to communicate information to a client about the representation.
SCR 20:1.4(a)(2), the newest provision of the communication rule, requires the lawyer to “reasonably consult with the client about the means by which the client’s objectives are to be accomplished.” The comment to this provision helps explain this requirement. The comment provides as follows:
“ Paragraph (a)(2) requires the lawyer to reasonably consult with the client about the means to be used to accomplish the client’s objectives. In some situations – depending on both the importance of the action under consideration and the feasibility of consulting with the client – this duty will require consultation prior to taking action. In other circumstances, such as during a trial when an immediate decision must be made, the exigency of the situation may require the lawyer to act without prior consultation. In such cases the lawyer must nonetheless act reasonably to inform the client of actions the lawyer has taken on the client’s behalf.”
The Restatement of Law Governing Lawyers provides additional guidance for lawyers about the concept of communication with a client. Section 20 of the Restatement provides as follows:
“A Lawyer’s Duty to Inform and Consult with a Client
“(1) A lawyer must keep a client reasonably informed about the matter and must consult with a client to a reasonable extent concerning decisions to be made by the lawyer under § 21 (Allocating the Authority to Decide Between a Client and a Lawyer), § 22 (Authority Reserved to a Client), and § 23 (Authority Reserved to a Lawyer).
“(2) A lawyer must promptly comply with a client’s reasonable requests for information.
“(3) A lawyer must notify a client of decisions to be made by the client under §§ 21-23 and must explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”
Commentary under this section may offer some additional insight:
“A lawyer must keep a client reasonably informed about the status of a matter entrusted to the lawyer, including the progress, prospects, problems, and costs of the representation (see Restatement Second, Agency § 381). The duty includes both informing the client of important developments in a timely fashion, as well as providing a summary of information to the client at reasonable intervals so the client may be apprised of progress in the matter.
“The lawyer’s duty to consult goes beyond dispatching information to the client. The lawyer must, when appropriate, inquire about the client’s knowledge, goals, and concerns about the matter, and must be open to discussion of the appropriate course of action.
“A client is entitled to know how a lawyer is handling the client’s matter and how it is progressing. The lawyer thus should respond in a timely and adequate manner to a client’s request for information or to a client’s general request to be kept informed about specified matters (see generally Restatement Second, Trusts § 173).”
The Restatement of Law Governing Lawyers is often referred to as the standard for addressing whether a lawyer has violated her fiduciary duty to a client. Again, the primary focus is communicating, in a timely manner, sufficient information so the client understands what is happening with the representation.
Nothing above identifies a specific standard of X number of contacts within a specific time. This information simply highlights and emphasizes the importance of communicating frequently with a client about the representation and providing enough information for the client to understand what is happening with the representation.