CHAPTER 1 - 1-5 COMMUNICATION

• Jurisdiction: United States

1-5 Communication

Lawyers must keep their clients reasonably informed about their matters.¹⁰⁰ This includes providing information when informed consent must be obtained from the client,¹⁰¹ consulting about the means by which the client's objectives will be accomplished,¹⁰² and complying with reasonable requests for information.¹⁰³ Client communications should be promptly returned or acknowledged.¹⁰⁴

As Professors Hazard and Hodes note, an attorney-client relationship cannot exist without communication for the simple reason that lawyers' conduct in serving their clients has its origins in the law of agency.¹⁰⁵ Lawyers are the agents of their clients, bringing their skill and experience to the task of achieving the client's goals. Unless the agent receives instructions and reports back on progress, the lawyer ceases to be the agent of the client and becomes a free agent, serving his own goals.

While lawyers must generally keep clients informed of matters and progress, the rule recognizes that the exigencies of a matter, such as strategy decisions made during trial¹⁰⁶ or when immediate transmission of information may cause a client to act imprudently,¹⁰⁷ may excuse prompt communication. As with many rules which set performance standards, the lawyer's conduct is governed by the rule of reason.¹⁰⁸ In some circumstances, the importance of the information to be provided to the client will require written communication.¹⁰⁹

Diligence, competence, and communication matters sometimes comprise as much as half of the discipline docket. And, as with diligence and competence, much of the problem in communication cases relates to the fact that the lawyers complained of have issues well beyond client management that need to be addressed. Lawyers who have unmanageable caseloads, who cannot afford staff to answer phones and talk to their clients, or who are suffering with mental and physical health issues are not going to return phone calls, spend time talking with their clients, or engage in the type of collaborative relationship that the modern iteration of the rules anticipates. And while technology was thought to be one answer to this problem, it has turned out to aggravate the problem as often as not. Clients are used to instant communication by phone, text, e-mail and other forms of 24/7 communication.

Serious discipline has been imposed in cases involving a pattern of neglect and lack of communication.¹¹⁰ Lawyers advising lawyers on matters of ethics compliance and...