Wisconsin Lawyer: Ethics: Duty to Communicate with Client:

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December 04, 2009

Ethics: Duty to Communicate with Client

Changes to the Rules of Professional Conduct emphasize lawyers’ responsibility to give clients appropriate information to help them participate in decisions about the means and strategies to accomplish the goals of the representation.

Dean R. Dietrich

Question

I have heard several comments about a lawyer’s greater duty to communicate with clients. What does this really mean?

Answer

There has been a lot of discussion about the duty to communicate with clients. Mostly, this is because failure to communicate is one of the most common grievances brought against lawyers who allegedly have violated the Rules of Professional Conduct. Changes in the Rules also signal a greater emphasis on the duty to communicate with a client, especially as to the means to accomplish the goals of the representation.

The duty of a lawyer to communicate with a client is embodied in SCR 20:1.2 and 20:1.4. Excerpts from those rules read as follows:

SCR 20:1.2 Scope of representation and allocation of authority between lawyer and client.

(a) Subject to pars. (c) and (d), a lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by SCR 20:1.4, 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 or any proceeding that could result in deprivation of liberty, 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.

…

SCR 20:1.4 Communication.

(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 SCR 20:1.0(f), 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 by the client 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.

(Emphasis added.)

Dean R. Dietrich, Marquette 1977, of Ruder Ware, Wausau, is chair of the State Bar Professional Ethics Committee.

The language in SCR 20:1.2 is actually the same as that in the old rule, except for the specific reference to “as required by SCR 20:1.4.” The language in SCR 20:1.4 is, in most instances, similar to what previously existed in the old Rule 1.4 or was found in other rule sections and simply relocated to SCR 20:1.4. New language is contained in SCR 20:1.4(a)(2), which identifies the duty of a lawyer to “reasonably consult with a client about the means by which the client’s objectives are to be accomplished.” This language is really not much different than the language found in SCR 20:1.2(a), but the addition of this language to SCR 20:1.4 has raised everyone’s eyebrows. This special emphasis on consultation with the client about the means to be used by the lawyer to accomplish what the client wants coincides with the new definition of informed consent, which requires the lawyer to communicate the advantages and disadvantages of, as well as the alternatives to, a proposed course of conduct for which client consent is required. This all creates a greater focus on consultation with a client about the means to accomplish the representation as well as the objectives of the representation, which are always to be decided by the client.

The amount of communication required by the Rules of Professional Conduct cannot be measured objectively. What is obvious, however, is that there is a greater focus on communication with the client and participation by the client in decisions over the means or strategies that should be used during the representation to accomplish the goals of the representation. This makes communication between the lawyer and the client far more important because the client is to be consulted with and given the appropriate information to assist the client in helping determine the means and strategies that will be used during the representation.

Lawyers should not be afraid of this new emphasis on communication between the lawyer and the client. This greater focus will help the lawyer maintain a better lawyer-client relationship. Lawyers should focus on developing best practices to ensure they are communicating well with their clients about the objectives of the representation and the strategies that will be used to accomplish those objectives.

Editor’s Note: It is important that lawyers be responsive to clients and keep them informed. It is equally important to set the ground rules for communicating early on to avoid giving clients unrealistic expectations. To learn more, read “Beware of Raising Clients’ Expectations of Your Availability,” this month’s Managing Risk column elsewhere in this issue.

Wisconsin Lawyer