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On Lawyer Communication

November 13, 2020

Jeffrey Hamilton Geiger

Sands Anderson PC

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Richmond, Virginia

“The single biggest problem in communication is the illusion that it has taken place.” –George Bernard Shaw

“As advisor, a lawyer provides a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications.” –Preamble, Virginia Rules of Professional Conduct.

Any discussion of the attorney-client relationship involves communication and allocating authority between the lawyer and the client.  Rule 1.2(a) provides that:

[A] lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by Rule 1.4 [Communication], shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client’s decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

In other words, the client dictates the objectives, while the lawyer determines the means (with consultation with the client).  Under this allocation (a) both the lawyer and the client have responsibilities; (b) the client has ultimate authority to determine purposes served by representation; (c) the lawyer shall advise the client about the advantages and disadvantages of different means to pursue objectives; and (d) the lawyer is not required to pursue objectives or employ means simply because a client may wish that the lawyer do so (which may result in a decision by the lawyer to seek withdrawal from the engagement or the client’s termination of the lawyer’s representation).

None of this can be accomplished properly without sufficient communication between the lawyer and the client.  Client communication is critical for the ethical and productive practice of law.  Yet, bar complaints and legal malpractice actions frequently cite poor communication as a source of discontent in the attorney-client relationship.  To give it a number, roughly 25% of complaints cite client dissatisfaction with communication with her own lawyer.

Practice Points in Communicating with Clients:

  1. Communicate clearly and often. Know your audience and know your client.  Set aside a day or a benchmark to make those follow up communications.  A simple email may be all that is necessary to keep the client informed, even if there is nothing going on with the case.
  2. Set and manage client expectations as to communications. Make sure you and the client know how to communicate (e.g., the client’s personal email address) and when you will communicate.  Address this at the outset of the relationship and commit to revisiting it as the matter progresses and circumstances change.  According to the 2018 Legal Trends Report (Clio), 68% of clients expect their lawyers to be available outside of the office, and 59% expect them to be available outside of business hours—but 39% of lawyers say that working outside of business hours negatively affects their personal lives.
  3. Listen. “We have two ears and one tongue so that we would listen more and talk less.” Diogenes.
  4. Make certain your client communications are ethically compliant with reasonable security protocols. In other words, make certain that the communications are secure, to the client (versus a third-party), and made in a manner that can insure their confidentiality (e.g., work vs. personal email account). See Rule 1.6(d) (“A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”) & Rule 1.6, 19-21.
  5. Know which medium to use. Aside from the clear mandate to communicate, the rules do not proscribe how to communicate, only that the “how” is adequate.  So, for example, in Virginia Legal Ethics Opinion 1791, the Standing Committee on Legal Ethics concluded that:

“Rule 1.4 focuses on communicating the status of the matter, information necessary for informed decision-making, and pertinent facts in the matter. The rule in no way dictates whether the lawyer should provide that information in a meeting, in writing, in a phone call, or in any particular form of communication. In determining whether a particular attorney has met this obligation with respect to a particular client, what is critical is what information was transmitted, not how.”

However, just because you can text the client the bad news, does not mean that you should do so.  In the context of addressing the ethics of using a “virtual law office,” Legal Ethics Opinion 1872 cautioned that reliance on electronic communications may require additional effort on the part of the attorney to ensure that the client understands the communication:

The Committee previously concluded in LEO 1791 that a lawyer could permissibly represent clients with whom he had no in-person contact, because Rule 1.4 “in no way dictates whether the lawyer should provide that information in a meeting, in writing, in a phone call, or in any particular form of communication. In determining whether a particular attorney has met this obligation with respect to a particular client, what is critical is what information was transmitted, not how.” On the other hand, one of the aspects of communication required by Rule 1.4 is that a lawyer must “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” Use of the word “explain” necessarily implies that the lawyer must take some steps beyond merely providing information to make sure that the client actually is in a position to make informed decisions.

Jeff Geiger assists attorneys and law firms with ethics, legal malpractice and professional responsibility matters.  If you have any questions about this post or other issues, please contact Jeff at (804) 783-7248 or jgeiger@sandsanderson.com.

 

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