March 23, 2021 Practice Points

Model Rule 1.4: Communication Is Key to Avoiding Malpractice Lawsuits

It is easy to give clients good news. It is much harder to give clients bad news. That is part of the job.

By Michael S. LeBoff

As an attorney that frequently handles legal malpractice cases, I find that poor communication is a leading cause of malpractice cases. Model Rule of Professional Conduct 1.4 governs an attorney’s ethical duties to communicate with clients. It reads:

(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.

There are many things attorneys should discuss with clients on a regular basis, including:

  • strategy—how you will complete the assignment and achieve goals;
  • budget;
  • significant research and conclusions;
  • important events in the case/assignment;
  • settlement offers; and
  • conclusion of assignment and end of relationship.

In addition, communicating with the client does not mean telling the client what he or she wants to hear. It is easy to give clients good news. It is much harder to give clients bad news. That is part of the job. It is not easy, but it has to be done.

The duty to communicate also comes into play when attorneys make a mistake. Rule 1.4 requires a lawyer to inform a current client if the lawyer believes that he or she may have materially erred in the client’s representation. All attorneys make mistakes. Fortunately, most mistakes are correctable if you acknowledge the error and promptly correct it. This includes coming clean to the client. Many lawyers, acting out of fear or embarrassment, however, are not up front with clients about mistakes. Rather than address and fix a mistake, some attorneys wishfully hope that the mistake simply goes away. When it does not, expect the malpractice lawyers to appear.

Michael S. LeBoff is a partner at Klein & Wilson in Newport Beach, California. 


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