Oregon State Bar Bulletin APRIL 2016
Keeping Clients and Ethical Obligations Satisfied
By Linn Davis
“The single biggest problem in communication is the illusion that it has taken place.” —George Bernard Shaw
Every lawyer has read the Oregon Rules of Professional Conduct (RPCs); few of us could recite them from memory. From time to time, we spot an ethics issue and consult the rules to determine our obligations. But, one way we abide by our obligations on a day-to-day basis is by practicing what I’ll call “lawyer virtues” — behaviors that, if we follow them, go a long way toward making certain we are doing our jobs correctly. The practice of the virtue of good communication not only helps ensure we are following the rules, it is also likely to result in satisfied clients and the prevention of complaints to the bar’s Client Assistance Office.
Perceptions that a lawyer is failing to communicate or act diligently in other respects are the most frequent source of complaints to the bar’s Client Assistance Office. Although communication is explicitly mentioned in only a few of the rules, concerns about communication underpin a large share of them. Each rule could warrant its own article. This article only seeks to identify how the virtue of good communication is a common element of many rules.
Advertising for Clients
At the outset, we cast our net for clients in advertisements or online profiles that tout our experience, success or credentials. Many of the prophylactic regulations governing these communications have been pruned away. A lawyer’s responsibility under RPC 7.1 is simply to avoid making false or misleading communications about the lawyer or the lawyer’s services. Communications are considered false or misleading not only if they are affirmatively false or misleading but also if they omit facts necessary to avoid misleading.
Other, more particular, advertising and solicitation regulations remain. For instance, where a lawyer is motivated in significant part by pecuniary gain, RPC 7.3(a) restricts the live solicitation of clients — whether that occurs in person or through other means such as the telephone or Internet — to family, other close personal or professional relationships and other lawyers. RPC 7.3(c) requires every written, recorded or electronic solicitation to a person known to be in need of legal services to inform the recipient that the solicitation consists of “Advertising Material.” In the case of a letter, that means on the outside of the envelope. For recorded or electronic communications, the lawyer must include those words at the beginning and end of the communication. Finally, RPC 7.5 regulates the way lawyers advertise their services in firm names and on letterhead.
Forming Client Relationships
When lawyers communicate with potential clients, we can avoid trouble later by communicating at that time, preferably in writing, on each of the following subjects: Have we accepted the representation, or not? Who is the client? Lawyers who fail to clearly articulate, for themselves and the client, who exactly is a client can find themselves with a current client (RPC 1.7) or former client (RPC 1.9) conflict they could have foreseen and avoided.
If a lawyer-client relationship follows, what are we expected to handle or accomplish on behalf of the client? Lawyers who fail to clearly define the scope of the representation are vulnerable to misunderstandings concerning their authority to act pursuant to RPC 1.2(a); whether they have failed to act diligently, as required by RPC 1.3; and whether they have fully earned flat fees or must return unearned fees (or refund earned-on-receipt fees), as required by RPC 1.5(a) and RPC 1.16(d).
Keeping in Touch
Pursuant to RPC 1.4, once we have been retained by a client, we have an explicit and ongoing duty to keep in touch and communicate with the client. The topics of communication are not set forth under RPC 1.4 and, given the myriad possible legal and factual circumstances that may exist, it would not be possible to list them all. However, portions of RPC 1.4 and other rules provide additional direction.
It is generally understood that the client determines the objectives of representation, and it is the lawyer who is expected to exercise professional knowledge, skill and judgment regarding the means employed to attain the objectives. Even though the means are for the lawyer to determine, RPC 1.2(a) requires a lawyer to consult with the client regarding the means by which the client’s objectives are pursued. The court has found that a lawyer who, among other things, made numerous tactical decisions without discussing the decisions with the client, violated his duty to communicate. In re Snyder, 348 Or 307, 315 (2010).
RPC 1.4(a) requires a lawyer to keep the client reasonably informed about the status of a matter and to promptly comply with reasonable requests for information. What is reasonable? RPC 1.0(k) states that, when used in the RPCs in relation to conduct by a lawyer, reasonable or reasonablydenote the conduct of a reasonably prudent and competent lawyer. In determining what is reasonable, the Oregon Supreme Court has looked at the time that elapses between a lawyer’s decision or action and the communication of that decision to the client and whether the lawyer should have foreseen that a delay in communicating the decision or action could prejudice the client. In re Groom, 350 Or 113, 123-25 (2011) (finding lawyer had not violated RPC 1.4 where he generally answered telephone calls and emails within days, promptly communicated the substance of an order received from the court, and communicated his decision not to pursue an alternative course of action in time for the client to pursue the alternative course with another lawyer).
RPC 1.4(b) requires a lawyer to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. This means that attorneys must inform clients of the significance and ramifications of important events in the course of a representation.1 To obtain informed consent, a lawyer must communicate “adequate information and explanation about the material risks of and reasonably available alternatives to” a proposed course of conduct. RPC 1.0(g) (defining “informed consent”). That definition seems applicable to the concept of informed decision making in other circumstances, as well.
We must communicate all the news to the client, bad news and good. In re Coyner, 342 Or 104, 108 (2006). Lawyers who are found to have violated RPC 1.4, frequently have been found to have avoided sharing bad news with the client — such as news that the lawyer was unable to obtain a desired result for the client, the lawyer determined the client’s position is untenable or the lawyer is at a loss how to proceed.
In communicating advice to a client, RPC 2.1 requires us to exercise independent professional judgment and render candid advice. Our advice may refer not only to the law but also to other considerations such as moral, economic, social and political factors that may be relevant to the client’s situation.
Duties to communicate with the client also arise from the rules governing conflicts, which can be thought of as special instances of RPC 1.4(b). For instance, the current client conflict rules under RPC 1.7 define circumstances in which, if a lawyer is to undertake or continue representation, the lawyer must communicate information to the client about potential limitations upon the lawyer’s ability to represent the client and recommend that the client seek independent legal advice to determine if the client should consent to the representation in light of them.
Communicating with Courts and Third Parties
Rules governing property of clients and others also trigger duties to communicate. Some rules require communication with those others as well as our clients. RPC 1.5(c) and (d) prescribe information we must communicate when a fee is to be deemed “earned on receipt” or will be shared with a lawyer not in the same firm. Upon receiving funds or property in which a client or third person has an interest, RPC 1.15-1(d) requires us to promptly notify those persons and, upon request, render a full accounting regarding the property.
Throughout the representation, we are required to adhere to rules requiring candor to the tribunal (RPC 3.3) and to others (RPC 4.1). When we communicate with a tribunal on the merits of a cause, RPC 3.5(b) requires us to ensure all the parties to the cause are included in the communication, unless communication ex parte is permitted by law or court order. When we communicate with unrepresented persons, RPC 4.3 requires us to avoid giving the impression we are disinterested and to correct that misimpression if it arises. Communicating our role early on goes a long way toward addressing those concerns. If we know or should realize that a document or electronically-stored information was inadvertently sent to us, RPC 4.4 requires us to promptly notify the sender.
Ending a Client Relationship
Finally, when we terminate representation or it is terminated, RPC 1.16(d) requires us to take reasonable steps to the extent reasonably practicable to protect a client’s interests, including: giving reasonable notice to the client; allowing time to employ other counsel; surrendering papers and property to which the client is entitled; and refunding any advance payment of fee or expense that has not been earned or incurred. Just as at the beginning of a representation, it is useful to provide a letter to the client, except this letter confirms the end of the representation, explains the final status of matter, provides a final accounting for the client’s property and describes steps the lawyer has taken or the client should take to protect the client’s interest in the future.
Of course, there are also times that communication is restricted, most notably by RPC 1.6 (confidentiality of information gained in the representation of a client) and RPC 4.2 (communication with a person represented by counsel). However, keeping in mind the general virtue of good communication can help us to discharge our professional responsibilities, satisfy our clients and avoid trouble.
1. Lawyers’ Manual on Professional Conduct, § 31:508. See also, e.g., In re Dugger, 291 Or 21 (1985) (upon discovering the client for whom the lawyer had filed a construction lien was not a licensed contractor, lawyer was required to tell the client of the probable consequences of the lack of a license upon efforts to foreclose the lien).
ABOUT THE AUTHOR
Linn Davis is assistant general counsel and client assistance office manager of the Oregon State Bar. He is a former assistant disciplinary counsel for the OSB. He can be reached by email at email@example.com or by phone at (503) 431-6332.
© 2016 Linn Davis