9.05. Communication [Rule 1.4]

A lawyer has an obligation to communicate with a client about their case.  The duty to communicate exists throughout the representation.  The general rule is that a lawyer “shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”[1]  Recall that Rule 1.2(a) divides decision-making authority between the objectives of representation (left to the client) and the means of reaching those objectives (left to the lawyer).  Rule 1.4(a)(2) provides that even with regard to the means, a lawyer should “reasonably consult with the client about the means by which the client’s objectives are to be accomplished.”  The key here is “reasonably.”  A lawyer certainly can discuss with a client about whether to file a motion for summary judgment or ask certain interrogatories. However, situations also arise where it is not feasible for a lawyer to consult, and those decisions are left to the lawyer.  For example, in the middle of trial a lawyer has to make decisions – such as whether to object – without the ability to consult with the client.[2] 

A lawyer has an obligation to “keep the client reasonably informed about the status of the matter” under Rule 1.4(a)(3).  This places the affirmative obligation on the lawyer to communicate with the client about what is going on in the case (note that these status updates were also discussed above in the discussion of diligence).   Under Rule 1.4(a)(4) a lawyer must also comply with “reasonable requests for information.”  The key here is reasonable.  A lawyer does not violate the obligation to communicate where the client demands updates every day or even every week.  A good rule of thumb is to have a systematic update system to send out to the client every so often (month or quarter), even if nothing is going on in the case. Updates should be sent out more often if things are happening in the case.

There are a number of rules that require the lawyer to obtain the “informed consent” of the client (by my count there are 8 situations).[3]  Rule 1.4(a)(1) makes it explicit that a lawyer must communicate sufficiently with the client to obtain informed consent where it is required.  “Informed consent” requires “a disclosure of the facts and circumstances giving rise to the situation, any explanation reasonably necessary to inform the client … of the material advantages and disadvantages of the proposed course of conduct and a discussion of the … options and alternatives.”[4]

To the extent the lawyer becomes aware that the client expects the lawyer to act in a manner that violates the lawyer’s ethical duties, the lawyer should inform the client of the limitations on the lawyer’s conduct (Rule 1.4(a)(5)). One last point.  Although the default rule is that a lawyer has an obligation to give a client all relevant information about the representation, the Comment recognizes one situation when a lawyer can hold back information: “when the client would be likely to react imprudently to an immediate communication.”[5]  The example given in the Comment is this: a lawyer learns of a client’s psychiatric diagnosis, and the examining physician indicates that the client could act imprudently if they learn of the diagnosis.  In that situation, the lawyer may withhold the information to protect the client.  However, a lawyer cannot withhold information just because it might be inconvenient for the lawyer or disappoint the client.

[1] ABA Rule 1.4(b).

[2] ABA Rule 1.4, Comment [3]

[3] See Rules 1.6, 1.7, 1.8, 1.9, 1.11, 1.12, 1.18, and 2.3.

[4] Terminology, Comment [6].

[5] ABA Rule 1.4, Comment [7].