April 1997

Communicating With Your Client

by Barrie Althoff, Chief WSBA Disciplinary Counsel

Opinions expressed herein are the author's and are not official or unofficial WSBA positions.

Communicating with your client enables you to learn your client's objectives, to instill confidence in the client that you can meet those objectives, and to satisfy your professional responsibilities. Failing to communicate with your client will likely lead to a dissatisfied client who will not pay your bill and who may seek disciplinary action against you. Rule 1.4 of the Rules of Professional Conduct (RPCs) requires you to (1) keep your client reasonably informed about the status of a matter, (2) promptly comply with reasonable requests for information, and, (3) explain a matter to your client to the extent reasonably necessary to permit your client to make informed decisions regarding the representation. This article looks at these and some related duties.

RPC 1.4 provides that a lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information, and a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

Your first duty under RPC 1.4 is to keep your client reasonably informed about the status of a matter. This is a positive duty — that is, you are obligated to keep your client informed, regardless of whether the client requests it or not. You are not permitted merely to await a client's request for information about the status. To meet this duty, you must periodically let your client know what you have already done on the matter, what you are currently doing, and what you will be doing. The frequency and extent of this will vary with each client depending on, for example, how long you have represented the client, the nature of the matter, and the needs of the client. You need to keep your client informed, not in detail, but more generally, as to where the matter is going. In litigation, for example, you need to explain your general strategy of handling the case, as well as the likelihood of success or failure. In negotiations, where there is usually more time available, you should provide more detailed information to your client about the major terms of the negotiations. Your positive duty to communicate with your client also allows you to find out about changes in your client's status — for example, in one case a lawyer did not discover his client had died until more than two years after the death.

Often a lawyer does not communicate with his or her client because the lawyer has failed to meet his or her RPC 1.3 obligation to represent the client with reasonable diligence and promptness. The lawyer may have assured the client that he or she is looking after the client's matter, but in fact the lawyer has done nothing for the client. If you find yourself in this situation, and your inactivity is because there is nothing to do at the time (for example, you are awaiting a response from the other side or awaiting a judicial determination), explain that to your client. If there are things you should be doing, however, apologize to your client for your lack of diligence, and then start working on the case. Clients have little confidence in, or respect for, a lawyer who repeatedly, but falsely, assures them he or she is working on their case, when in fact the lawyer is not doing so.

Your duty to keep your client informed about the status of a matter can be satisfied in part by regularly sending your client detailed bills explaining what you have done. All too often, bills are the only form of a lawyer's communication with his or her client. It clearly should not be. At the very start of your representation, explain to your client the likely cost of your services and related costs, and thereafter regularly keep your client informed and be available to answer questions about your bills. Talk to your clients in person about your bills and do not leave this important form of communication to your staff. If you are uncomfortable doing so, your client will likely also be uncomfortable, and, when questions arise as to your bills, your client is unlikely to discuss them with you. A dissatisfied client often does not pay bills, but instead files a grievance with the Bar against you. If your client is not paying your bills promptly, you need to communicate promptly with the client to find out if the client is dissatisfied with your representation, and if so, if you can cure that dissatisfaction. If you cannot, you and your client need to communicate as to whether to continue the representation. If the client does not have money to pay your bills, decide quickly whether you want to withdraw from the representation or whether you want to represent the client on a pro bono basis. You cannot make this decision, however, unless you communicate with your client.

The duty to keep your client informed about the status of a matter also includes a duty, if you are working in a law firm with other lawyers, to let the client know if you are leaving the law firm, since it is the client's choice as to who will continue to represent him or her. This notice to the client should be given in a manner that neither encourages nor discourages the client from following you.

Your second duty under RPC 1.4 is to respond promptly to reasonable requests for information. All too frequently clients complain that their lawyers do not return telephone calls and ignore information given by the clients in letters. You must respond to telephone calls and letters from your client and you must do so promptly. A good practice is always to return phone calls the same day, or, at the very latest, the next day. If you call your clients and cannot get through them, send a letter to them saying you tried; consider setting a specified date and time in your letter at which you will be in your office and ask the clients to contact you at that time. In every case, document your return calls and attempts to call since it is your defense against a charge of non-communication. If you cannot promptly provide the information requested, promptly contact the client and explain that you cannot do so, and state when you will be able to do so. Use your voice mail and your client's answering machine, if possible, to communicate, but do not hide behind your voice mail. A message on your voice mail stating that you will return calls, when in fact you do not, only angers your clients.

Your duty to respond promptly to client requests for information is limited to reasonable requests. What is reasonable will depend on the particular situation of you and your client and the nature of the representation. Practically, however, you should respond promptly to all requests that you can. If you do not think a particular request is reasonable, you should talk to your client about the request. If your client requests overly detailed information or on too short a time frame, you should not hesitate to tell your client that you believe the request is unreasonable and explain what you are willing to do to meet the client's expressed needs. If your client is in jail, you do not have to visit the client in jail every time your client demands to talk to you; rather, you must be available to your client on a reasonable basis.

Your duty to communicate with your client also requires you to keep your staff informed on how to contact you so that communications from your clients can be forwarded to you. Failure to do so can lead to a separate disciplinary charge of failing to supervise your support staff. While you may take a vacation or be away from your office for extended periods of time, your ethical duty to communicate with your clients does not take a vacation. You cannot keep your client informed, comply with reasonable requests for information, and explain matters to your client if you are unavailable for extended time — for travel, health reasons, or other obligations — unless you make advance arrangements with your client and with others. This may involve having your staff, or another lawyer, be the conduit for communication, and be available to review your mail and telephone messages. Your staff should know how to contact you during such an absence and during emergencies.

Your third duty under RPC 1.4 is to explain matters to your client to the extent reasonably necessary to permit your client to make informed decisions regarding the representation. Thus, you need to explain, for example, alternative courses of action and their consequences. To do so you must obviously know and understand those courses and consequences, and, if you do not, educate yourself about them. Similarly, you have a duty to promptly advise your client of civil settlement offers or criminal plea bargain offers and help your client understand the offers and the consequences of accepting or rejecting them. You cannot do this unless you understand your client's objectives and situation. You generally may not withhold relevant information from your client except in extremely rare cases where the information cannot by law be revealed or where it might harm your client; for example, disclosure of an unfavorable psychiatric diagnosis of your client might not be advisable at a particular time.

Your duty to explain to your client the law, alternative courses of action, and their consequences, is related to your duty under RPC 1.2 to abide by your client's decisions concerning the objectives of representation and to "consult" with your client as to the means by which those objectives are to be met. Under the RPCs the term "consult" means "communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question." Thus, communication requires you to use language in a manner that can be understood by your client. You must consider your client's ability to comprehend your spoken and written comments and make special efforts, for example, if your client is a child, emotionally distraught, or does not comprehend English. Communication with a client in jail also requires special efforts on your part.

Communication is more than merely you talking or writing to your client. It also requires you to listen to your client and read and understand what your client writes and says to you. You need to listen to what your client is saying, to allow your client to tell his or her story, as well as for you to gather necessary information. Equally important, you need to listen to what your client is not saying. If, for example, you never hear a "thank you," is your client thankful and are you meeting your client's expectations?

There are serious consequences of not communicating with your client. If you do not communicate, you are likely to do a poor job representing your client and there is a high likelihood that your client will feel ignored. Ignored clients often seek to gain their lawyer's attention either by not paying their legal bills, or by filing a grievance with the Bar. Neither is a desirable result. Both can be avoided by communicating with your client.