First, a refresher on ABA Model Rule 1.4. Rule 1.4(a) generally requires a lawyer to “promptly inform” the client of any decision or circumstance requiring the client’s informed consent; “reasonably consult” with the client about how to achieve the client’s objectives; keep the client “reasonably informed” about matter status; and “promptly comply” with reasonable requests for information. Rule 1.4(b) requires us to explain the matter to the extent “reasonably necessary” for the client to make informed decisions.
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What Is Prompt and Reasonable?
What is “prompt” depends on the circumstances, but communicating with the client sooner is always better than later, especially when you are the bearer of bad news or there is a big decision to be made.
However, being prompt is not enough. To be effective, communication must be in an appropriate form. A text may suffice as a reminder of a call or meeting. Discussion of the pros and cons of an upcoming decision merits a letter or memo.
And what is “reasonable” is not just a question of length. Putting critical advice in a text message, even if the advice is only a few words long, may not convey the gravity of the matter. Serious messages require serious words. “Not good idea”—or worse, the thumbs down emoji—may not be taken as seriously as “I strongly recommend against taking the action you propose.”
Your client’s preferred method of communication also needs to be considered. If your client will only respond to text messages and an issue calls for formal correspondence, text the client and tell them that an email or letter is on its way.
Preserve Your Communications
Once you are effectively communicating with the client, you need to think about self-preservation. Brief communications with little substance can still establish that you kept the client informed. More substantive communications should be recorded to preclude a later dispute about what was said. Don’t forget about phone conversations.
Many lawyers assume that recording phone calls without the other party’s consent is not permitted, but many states’ laws and disciplinary rules do not prohibit this. Before recording any call, know both the relevant law and the disciplinary rules in the jurisdiction where the recording occurs, and remember that federal courts may apply different disciplinary rules than those of the state where they are located.
ABA Formal Opinion 01-422 (2001) addresses the issue of secretly recording phone calls. The committee was divided on whether such recordings violated the Model Rules and concluded that without client consent, it was inadvisable absent “exceptional circumstances,” even if permissible under state law.
If recording a client call is not advisable or allowed, send a contemporaneous letter or email recounting the important parts of the call. Ending the follow-up email or letter with the request “if this does not accurately reflect our conversation please call me immediately” will give your writing extra legitimacy. If the client does not respond, it can be assumed that you have accurately set forth the salient points of the conversation.
Make Preservation an Office-Wide Effort
If you don’t have one, implement an office policy of capturing and preserving all forms of client communication. You would never delete client emails or throw away a letter, but many lawyers allow old text messages to simply disappear. Fortunately, programs to preserve and organize text messages are available at a modest cost. Voicemails should also be saved and transcribed. Phone messages taken by staff should be made part of the file and not tossed in the garbage when the call is returned. Preserving more ephemeral forms of communication is also a useful way to make sure that time spent on client communication is billed.
Finally, remember that time records are part of a court’s evaluation when awarding fees. Including enough information to justify the length of a call or meeting could help prove that you communicated appropriately with the client and that your request for fees is reasonable.
Effective Communication Is the Best Form of CYA
Every lawyer knows about the CYA (cover your ***) email or letter sent to a client who has become difficult. This often coincides with the end stages of a case when the client begins to realize—despite your earlier warnings—that their goals are not achievable. A single CYA letter recounting past communications isn’t the same as effectively communicating with a client during the representation. The good news is that if you communicate effectively and document and preserve your communications throughout the representation, you may never have to send that CYA letter at all.
Jeanne M. Huey is with Hunt Huey PLLC in Dallas, Texas.
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