Communication is the key
By Helen Hierschbiel
"What we’ve got here is a failure
to communicate."
[Donn Pearce and Stuart Rosenberg,
Cool Hand Luke, 1967 movie.]
As of Aug.1, 2003, the Client Assistance Office (CAO) began initial screening of all inquiries and complaints about members of the Oregon State Bar. According to the CAO 2004 Annual Report to the Oregon Supreme Court, the CAO handled 3,659 inquiries in 2004 (Jan. 1 to Dec. 31). Of the inquiries received during that time, 11.86 percent pertained to neglect of a legal matter, and 9.33 percent concerned communication issues. These two areas were the most common source of complaints received by CAO.
Until Jan. 1, 2005, Oregon had no explicit rule addressing the duty of communication. With the Oregon Supreme Court’s adoption of the Oregon Rules of Professional Conduct (Oregon RPC), now we do.
WHAT NEW RULE?
Oregon RPC 1.4 provides:
(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
This rule is the pre-2002 ABA Model Rule 1.4.1 ‘Reasonable’ or ‘reasonably’ is defined as "the conduct of a reasonably prudent and competent lawyer." Oregon RPC 1.0(k). While not adopted by the Oregon Supreme Court, the official comment to the pre-2002 version of ABA Model Rule 1.4 provides additional guidance in understanding the duty of communication:
The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so….Even when a client delegates authority to the lawyer, the client should be kept advised of the status of the matter….The guiding principle is that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client’s best interests, and the client’s overall requirements as to the character of representation….Where many routine matters are involved, a system of limited or occasional reporting may be arranged with the client.
Although Oregon had no explicit rule regarding communication until Jan. 1, 2005, the Oregon Supreme Court has long acknowledged that lawyers have a duty to communicate with their clients. See e.g., In re Chandler, 306 Or 422, 760 P2d 243 (1988) (failing to communicate with client for three years, closing active file and misplacing thereafter, and failing to respond to requests for the file constitute neglect).
The duty to communicate does not require that lawyers respond to every single phone call from a client. In re Walker, 293 Or 297, 647 P.2d 468 (1982) (lawyer not communicating with client as often as client requested did not violate disciplinary rules where lawyer kept client adequately informed of progress of client’s matters; client made numerous phone calls to lawyer, sometimes three times a day, to check status of two cases and lawyer told client he would contact him when he had something to tell him). Similarly, other jurisdictions operating under RPC 1.4 have not interpreted the rule to require an immediate response to every call or request by a client. See e.g., In re Schoenemann, 777 A.2d 259 (D.C. 2001) (failing to return client’s telephone calls for three weeks did not violate Rule 1.4 where client admitted she and lawyer spoke monthly and lawyer regularly informed her of his efforts to reopen her civil rights case; lawyer need not communicate as often as client would like; monthly contact not unreasonable given the circumstances).
Although the Oregon Supreme Court has discussed the duty to communicate in the context of patterns of neglect or allegations of misrepresentation, other jurisdictions’ interpretation and implementation of RPC 1.4 suggest that the guiding principles of communication under RPC 1.4 are similar to those found in Oregon law. For example, the failure to inform a client about important dates or the status of the case will result in discipline. Cf. In re Bourcier, 325 Or 429, 939 P2d 604 (1997) (lawyer neglected client’s criminal appeal where lawyer filed the necessary documents with the appellate court, but never communicated with the client regarding the status of the appeal); In re Barnes, 691 NE2d 1225 (Ind. 1998) (bankruptcy lawyer violated Rule 1.4 by failing to notify client of deadline for submitting Chapter 13 plan and of the meeting of creditors, failing to meet the deadlines or appear for the hearing resulting in the case being dismissed, and failing to respond to client’s requests for information).
Lying to clients or concealing information about what activity has occurred on their cases will also result in discipline. Cf. In re McKee, 316 Or 114, 849 P2d 509 (1993) (lawyer violated disciplinary rules by failing to disclose to client that litigation had been dismissed, that counterclaims had been filed, that settlement negotiations had occurred and that trial dates were set); In re Hagedorn, 725 NE2d 397 (Ind. 2000) (lawyer violated Rule 1.4 by failing to take steps to complete adoption for client and misleading client about status of proceedings).
Thus, while Oregon RPC 1.4 is new, the underlying precepts are not.
ANOTHER NEW RULE
Oregon RPC 1.4 dovetails into Oregon
RPC 1.2(a) which, while similar to former DR 7-101(A)
and (B), also has no direct counterpart in the prior
Oregon Code. Oregon RPC 1.2(a) provides:
Subject to paragraphs (b) and (c), a lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by Rule 1.4, 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.
Again, while the rule is new, the concepts are not. Oregon RPC 1.2(a) is a more explicit reminder of what Oregon law has long recognized: that the lawyer-client relationship is a fiduciary relationship based upon the principles of agency law. See e.g., OSB Legal Ethics Op. No. 1991-26 and 1991-33. Thus, while lawyers may exercise professional judgment to make decisions concerning strategy, clients make the ultimate decisions which affect their substantive rights, such as whether and for how much to settle their cases. Further, Oregon RPC 1.2(a) reminds lawyers that communication with clients is the foundation for carrying out their responsibilities under this rule.
HOW MUCH COMMUNICATION IS ENOUGH?
I recently attended an OSB CLE seminar
entitled How to Keep Clients Happy. Gary Richards,
the speaker, said "to meet an expectation, you
must set an expectation." It is common sense,
practical advice that sounds easier than it may be
to implement. Setting expectations starts with not
assuming that your client knows what you know, whether
it is about the law, your office systems and practices,
or that "right away" means in two weeks.
Richards presented many practical suggestions to help lawyers bridge communication gaps with clients. For example, at the outset of representation, give clients a broad outline of the steps involved in their cases, what the clients are expected to do, what the lawyer will do, and a conservative time frame for completion. This information might be covered in a retainer agreement, a letter of engagement or in a simple handout. Always have an express fee agreement, preferably in writing. Provide clients a copy of all correspondence, both incoming and outgoing. Establish a system for returning phone calls, tell clients what that system is and stick to it. Do not set expectations that cannot realistically be met. Finally, rather than assuming clients understand what you are saying because you have waxed eloquent for the last 20 minutes, ask whether they understand, and test that understanding. Remember George Bernard Shaw’s wise words, "The problem with communication is the illusion it has occurred."
Endnote
1. In 2002, the ABA amended Rule 1.4 to read:
(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(e), is required by these Rules;
(2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
(5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
© 2005 Helen Hierschbiel
ABOUT THE AUTHOR
Helen Hierschbiel is assistant general
counsel in the OSB Client Assistance Office. She can
be reached at (503) 620-0222, or toll-free in Oregon
at (800) 452-8260, ext. 361, or by e-mail at hhierschbiel@osbar.org.