Concept
Why Lawyers Must Communicate
Communications with the client
Communicating with Clients
Why Lawyers Must Communicate
A client who controls the objectives of a representation cannot exercise that control without information. The Rules divide authority between the two: the client decides the objectives, such as whether to settle, and the lawyer chooses the means after consulting the client.1 The lawyer knows the law, the procedure, and the state of the file, while the client lives with the outcome and sees little of the work. A client who never learns that a settlement offer has arrived, or what a proposed strategy will cost, holds authority in name only. Consulting on means closes part of that gap, because it ensures that the client learns how the matter is proceeding and gets a chance to object.2
Fiduciary law pushes the same way. A lawyer must promptly advise the client of important information that may bear on the lawyer's duties of loyalty and confidentiality, and the disclosure should cover not only the material facts but also their legal significance.3 Communication is therefore the working channel through which the client's authority operates.
The channel runs in both directions. Lawyers identify a client's interests by interviewing in a way that makes the client comfortable telling the whole truth, and the lawyer must then explain a matter to the extent reasonably necessary for the client to make informed decisions.4 A client who asks for a large damages award may, once interviewed, turn out to want mostly an apology. Only a lawyer who has drawn that out can advise well, and only a lawyer who explains the options can let the client choose.
The structure of Rule 1.4 follows this purpose.5 Subsection (a) names five triggers, each tied to a different moment in the representation:
- a decision that requires the client's informed consent;6
- the means by which the client's objectives are to be accomplished;7
- the status of the matter;8
- the client's own requests for information;9
- a limit on the lawyer's conduct, when the client expects help that the Rules or other law do not permit.10
Subsection (b) then sets the standard for quality: the lawyer must explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.11 Subsection (a) tells you when the lawyer must speak, and subsection (b) tells you how much the lawyer must say once speaking is required. The sections that follow take each duty in (a) in turn, then turn to (b), the narrow exceptions, the lawyer's duty to disclose her own errors, and the collision with confidentiality in joint representation.
Reasonableness qualifies most of this. The lawyer must reasonably consult on means, keep the client reasonably informed, answer reasonable requests for information, and explain only to the extent reasonably necessary. Matters differ in stakes, pace, and the sophistication of the client. A fixed schedule of reports would be unworkable, and it would still miss the one development that matters. A question about an unhappy client therefore turns on whether the lawyer's silence or speech was reasonable for that matter, and small facts usually decide it.
The same standard protects lawyers from demands that go beyond what a matter calls for. The duty to keep the client informed does not hand the client control over the reporting schedule.12
Explanation matters most where the law reaches further than a client expects. Possession offenses alone are committed in some variant by millions of people every day, covering items as ordinary-sounding as toy guns and air pistols and as obvious as drugs.13 A client facing such a charge may not grasp how broad the offense is or what turns on the facts, so the lawyer's explanation of the legal significance is what makes an informed decision possible.