12 STEPS TO A HEALTHIER LAW PRACTICE IN 2020: STEP 8 – COMMUNICATION IS KEY

How is summer over already? In November 2018, 69 new or amended California Rules of Professional Conduct (“CRPC”) were thrust upon California’s more than 250,000 lawyers. These rules were renumbered and reorganized to align with the American Bar Association’s (“ABA”) Model Rules and replaced the 46 ethics rules that California lawyers had been following for nearly 30 years.  Despite each of us having been responsible for adhering to these rules since the end of 2018, many California lawyers and law firms still do not know, or do not fully appreciate, the significance of the modifications. Therefore, as we enter into this new decade and the second full year of these rules being in effect, I invite you and your firm to join my 12-step program to a healthier law practice in 2020 and in the years to come.

Each month I will feature an article on the key ethics rule changes aimed at guiding you and your firm to a healthier law practice by better managing your risks of liability.  You can access each article directly on this blog page or you can subscribe to this blog to ensure that you don’t miss any of the 12-steps.  The steps do not have to be reviewed in order, but you are encouraged to read each step to optimize the value of this program. To date, the following steps have been published:

Step 1 – Take Responsibility;

Step 2 – Treat Others The Way You Want To Be Treated;

Step 3 – Avoid Conflict;

Step 4 – Money Does Not Buy Happiness;

Step 5 – Sharing is Caring;

Step 6 – Advise on the Law;

Step 7 – The Practice of Law is Not a Dating Service

Please note that the articles on this blog are not legal advice and do not take into account specific facts or circumstances for which a tailored analysis and risk management plan is recommended.

STEP 8 – COMMUNICATION IS KEY

Communicating with clients is the cornerstone of the practice of law.  It is not only required under the ethics rules, but expected, of course.  Yet, despite the duty of communication being so fundamental, lack of communication is the single biggest complaint received by the State Bar of California.

California lawyers have always been subject to a common law duty to communicate as set forth in discipline case law, with our Supreme Court determining that an attorney’s failure to communicate with a client falls within the parameters of an attorney’s oath and duties, under the general provisions of Business & Professions (“B&P”) Code § 6068(a) (duty to support the laws). See Taylor v. State Bar (1974) 11 Cal.3d 424, 429-432.  “Prior to the enactment of [B&P Code § 6068] subsection (m), there was no express statutory provision establishing an attorney’s duty to communicate with a client. The Supreme Court has long held that the ‘[f]ailure to communicate, and inattention to the needs of, a client are proper grounds for discipline.’ (Citations.).”  In the Matter of Respondent C (Rev. Dept. 1991) 1 Cal. State Bar Ct. Rptr. 439, 450-451 [1991 WL 63249]. See also Spindell v. State Bar (1975) 13 Cal.3d 253, 260; Taylor at 429-432; Chefsky v. State Bar (1984) 36 Cal.3d 116, 124-12; Aronin v. State Bar (1990) 52 Cal.3d 276, 287-288.

Former ethics Rule 3-500 and B&P Code section 6068(m-n) then mandated three minimum requirements of a lawyer’s duty to communicate with a client: (1) respond to reasonable status inquiries; (2) communicate significant developments; and (3) provide documents when reasonably necessary to communicate significant developments. Current CRPC Rule 1.4, which went into effect on November 1, 2018, generally maintains these requirements under 1.4(a)(3), but has added new, express commitments to a lawyer’s duties of communication consistent with ABA Model Rule 1.4, which has been adopted by the majority of jurisdictions throughout the country. The added language is “intended to enhance public protection by more clearly stating a lawyer’s obligations to clients with regard to communication.”  Executive Summary to Proposed Rule of Professional Conduct 1.4 at 1.

Under subsection (a) to Rule 1.4, a lawyer must now also do the following:

(1) promptly inform the client of any decision or circumstance with respect to which disclosure or the client’s informed consent is required by these rules or the State Bar Act;

(2) reasonably consult with the client about how to accomplish the client’s objectives in the representation;

(4) advise the client about any relevant limitations on the attorney’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct of other law.  

Informed consent as mentioned in subsection (a)(1), it is a component of many ethics rules, including the rules prohibiting unconscionable fees (Rule 1.5(b)(13)), dividing fees among lawyers (Rule 1.5.1), protecting client confidences (Rule 1.6(a)), conflicts between current clients (Rule 1.7(a)), business transactions with clients (Rule 1.8.1(c)), payment of fees by a third party payor (Rule 1.8.6(c)), aggregate settlements (Rule 1.8.7(a)), duties to former clients (Rule 1.9(a)), conflict rules for government lawyers (Rule 1.11(d)(2)(i)), and duties owed to prospective clients (Rule 1.18). Informed consent is so important that the Rules of Professional Conduct define it with specificity in Rule 1.0.1(e): “Informed consent means a person’s agreement to a proposed course of conduct after the lawyer has communicated and explained (i) the relevant circumstances and (ii) the material risks, including any actual and reasonably foreseeable adverse consequences of the proposed course of conduct.” Subsection (b) of Rule 1.4 further requires that a lawyer shall “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” 

Subsection (a)(2) follows the principal stated in Rule 1.2(a), which requires a lawyer to “abide by a client’s decisions concerning the objectives of representation,” by mandating that a lawyer consult with a client to determine what those objectives are  and the means by which they are to be pursued. The client has the ultimate authority to determine the purposes to be served by the legal representation, “within the limits imposed by the law and the lawyer’s professional obligations.” Rule 1.2, Comment [1]. 

Advising a client about limitations on the lawyer’s conduct under subsection (4) can be challenging, but it is important to make the client aware of what the lawyer can and cannot do in order to ensure realistic expectations.  Setting expectations early and often helps to avoid disputes down the road.  Limitations on a lawyer’s conduct include mandates expressed in other ethics rules, such as the prohibition of making a false statement to a tribunal or offer false evidence (Rule 3.3(a)), or suppressing or obstructing another party’s access to evidence (Rule 3.4).  Rule 1.16 further requires communication of a lawyer’s limitations where, for example, the client is seeking to utilize the lawyer’s services in litigation without probable cause and for the purpose of harassing or maliciously injuring any person (Rule 1.16(a)(1)), or when the lawyer’s mental or physical condition renders it unreasonably difficult to carry out the representation effectively (Rule 1.16(a)(3)).

Lawyers are not obligated to provide clients with information that is “insignificant or irrelevant,” a determination that is to be made “depend[ing] on the surrounding facts and circumstances[,]” and will not be subject to discipline for failing to communicate such information. Rule 1.4, Comment [1]; B&P Code § 6068(m). The expanded provisions of Rule 1.4 also do not create any new obligation to provide attorney work product, which continues to be governed by “statutory and decisional law.”  Rule 1.4, Comment [4]. 

Under paragraph (c) of Rule 1.4, an attorney may delay providing information to a client only when the attorney “reasonably believes” that doing so would prevent the client from self-harm or from harming others.  Paragraph (c) applies during the representation and does not alter the obligations applicable at termination of a representation (see Rule 1.16(e)(1)). Rule 1.4, Comment [3]. Note that Rule 1.4(c) doesn’t permit the concealment of sensitive information, only a delay in transmission.  This rule may be of most use for practitioners in family law or criminal defense cases, areas where the transmission of bad news is not a rare event.  

The new rule further recognizes limitations imposed by an “applicable protective order, non-disclosure agreement or limitation under statutory or decisional law.”  Rule 1.4(d).  An example of this is an order obtained under Penal Code section 1054.7(b), requiring that otherwise discoverable information be withheld from a criminal defendant in certain circumstances, such as the identity of a witness where the disclosure might put the witness’s life at risk. 

Although the obligations under Rule 1.4 may, and frankly should, seem obvious to every lawyer, the complaints received by the State Bar show that a new rule was necessary to more plainly identify a lawyer’s communication obligations to a client. The added mandates ultimately raise the stakes as far as discipline is concerned; however, a thoughtful lawyer should have no problem abiding by these reasonable conditions.  Documenting client communications, particularly the exchanges required under the rule, can further serve to protect lawyers from discipline.

Please contact author, Kendra Basner, if you have any questions about this article or if you would like guidance as to the application of or compliance with these rules.

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