Reporter's Explanation of Changes
TEXT:
1. Paragraph (a): Clarify lawyer's duty to communicate with client
Two aspects of the lawyer's duty to communicate with the client were previously contained in Rule 1.2. The Commission is recommending that all rules imposing a general duty to communicate with a client be located in Rule 1.4. To clarify the lawyer's important duties to communicate with a client, the Commission has modified paragraph (a) to specifically identify five different aspects of the duty to communicate.
2. Paragraph (a)(1): Add duty to communicate about decisions that require client consent
Paragraph (a)(1) is new and addresses the lawyer's duty to communicate with the client about decisions that require the client's consent. To the extent that current Rule 1.2(a) and paragraph (b) of this Rule implicitly require such communication, no change in substance is intended.
3. Paragraph (a)(2): Add duty to consult about means to accomplish client's objectives
Paragraph (a)(2) is taken from Model Rule 1.2(a), which now contains a textual cross-reference to this Rule. The word "reasonably" has been added to preclude a reading of the Rule that would always require consultation in advance of the lawyer taking any action on behalf of the client, even when such action is impliedly authorized under Rule 1.2(a). The Commission believes that lawyers have commonly understood current Rule 1.2(a) to require only reasonable consultation; therefore, no change in substance is intended.
4. Paragraph (a)(3): Relocate duty to keep client reasonably informed about status of matter
Paragraph (a)(3) is the same as the first half of current Rule 1.4(a). No change in substance is intended.
5. Paragraph (a)(4): Relocate duty to comply with reasonable requests for information
Paragraph (a)(4) is the same as the second half of current Rule 1.4(a). No change in substance is intended.
6. Paragraph (a)(5): Add duty to consult with the client about limitations on the lawyer's conduct
Paragraph (a)(5) contains the substance of current Rule 1.2(e). The Commission deleted Rule 1.2(e) and added paragraph (a)(5) to Rule 1.4 so that all rules imposing general duties to communicate with a client will be located in Rule 1.4. No change in substance is intended.
COMMENT:
[1] This new Comment describes in very general terms the reason for the various duties in Rule 1.4.
Caption A new caption, "Communicating with Client," has been added to distinguish the issue discussed in Comments [2] through [4] - when the lawyer must communicate with the client - from the subsequent discussion in Comments [5] and [6] about the adequacy of the information provided to the client.
[2] This new Comment refers to decisions where the client's consent is required by the Rules and explains the application of paragraph (a)(1) in such circumstances. The Comment also explains that prior communications with the client or a grant of authority by the client may make it unnecessary for the lawyer to communicate with the client prior to taking an action that requires client consent.
[3] This new Comment explains the paragraph (a)(2) duty to reasonably consult with the client about the means used to accomplish the client's objectives. The key issue is whether consultation is required before or after the lawyer takes action on behalf of the client. To call attention to the difference between the duty to reasonably consult about means and the duty in paragraph (a)(3) to keep the client reasonably informed about the status of the matter, the last sentence provides an example of the latter duty.
[4] This new Comment discusses the paragraph (a)(4) requirement that a lawyer promptly reply to reasonable requests for information. The Commission thought that emphasis should be given to promptly returning or at least acknowledging receipt of phone calls.
Caption The new caption "Explaining Matters" alerts lawyers that Comments [5] and [6] relate to the adequacy of the information provided to the client.
[5] This Comment includes points made in current Comments [1] and [2]. The deleted text relates to matters now discussed in Comment [2]. Language has been added to alert lawyers to keep the client advised about the cost implications of tactical decisions made by the lawyer. The final sentence alerts lawyers that in some cases they will be required to secure the client's informed consent, as defined in Rule 1.0(e).
[6] This Comment is the same as current Comment [3], except that the last sentence has been deleted because its point is made in proposed Comment [3].
[7] This Comment is the same as current Comment [4] except that the third sentence has been broadened to more comprehensively alert lawyers that decisions to withhold information are subject to the lawyer's duty of loyalty.
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