Model Rule 1.4 Confirms “Early and Often” is Best
I love speaking to local Bar Associations all over Georgia. Getting out of the office to meet new lawyers and hear about their challenges of practicing law in a modern information prevalent world is rewarding. During our seminars, I am always surprised when only one or two lawyers know that Rule 1.4 was updated in 2011.
In 2011, the Georgia Bar adopted something closer to the ABA model rule of professional conduct. Now Georgia Rule of Professional Conduct (“GRPC”) 1.4 more clearly defines what, when, and how lawyers should communicate. Following their own Rules, the Georgia Bar even created GRPC 1.0 (Terminology) which defines terms like confirmed in writing, informed consent, and writing/written.
Although GRPC 1.4 deals with how we communicate with clients, don’t lose sight of the fact that good communication also involves active listening. As my good friend, Senior Judge Ralph Hill from the Lookout Mountain Circuit has said, communication, more importantly, involves listening to clients more than we speak to them. Two ears and one tongue means that we should listen twice as much as we talk.
You can click here: https://www.gabar.org/handbook/?rule=rule54&revision to read GRPC 1.4; however, here are five things you can do to help avoid conflict and improve the quality of your client communications:
Set objectives. Just like any other business initiative, you need to have a defined end point in order to be successful. Discuss each client’s goals and expected outcomes. After carefully listening to a client, set realistic objectives, including the projected financial investment and strategy required to achieve them. Then manage to those objectives. If anything changes (it always changes) related to the case or client demands, change the objectives to document the course adjustment.
Communicate early and often. Keep oral and written communications clear, concise, congenial, and timely to the circumstances. Also, keep it factual, but not too technical. You don’t want to impede the client’s ability to make an informed decision and give their informed consent by communicating in legalese. Explain and give examples, but state that you are explaining. Express opinions, but specifically state that as well, and make clear that opinions may vary. Provide equal priority, emphasis and energy to good news and bad news. You don’t want a client later saying you left out an important element or failed to communicate in a timely manner, preventing her from making an important decision.
Copy your clients on everything. Why not operate in a fully transparent environment? Your clients will be able to see everything that you’re doing, helping justify your fees and expenses. By sending clients a copy of what you send out as well as what you receive from the other side, it automatically keeps clients up to date, providing a roadmap and helping them see progress toward clearly defined objectives. It’s also easier than producing separate summaries. No letter of explanation is necessarily required when you copy a client on a communication, although a sentence or two of explanation may be helpful. This being said, Comment [7] to GRPC 1.4 points out that in some circumstances a lawyer may be justified in delaying transmission of information when the client would be likely to react imprudently to an immediate communication.
Utilize engagement letters with every client. Define the beginning point, objectives, scope of work, payment terms, and end point (disengagement letter). If the “beginning” never occurs, issue non-engagement letters. Every relevant consultation ought to have some go or no-go documentation. Periodically review your prospect file and issue appropriate letters to avoid getting burned by an implied relationship. Remember, whether you owe an implied duty is evaluated based on the reasonable belief of the prospective client, not the lawyer.
Assume all communication is client communication. Anything you write about a client (paper or electronic) may be seen at some point by that client, whether on purpose or by accident. Don’t ever write something that you don’t want to be cross examined about under oath on the witness stand.
Finally, if a client asks you to do something you ethically, morally, or legally can’t do, immediately communicate that and let them know specifically why you can’t. For example, if a client reveals she is going to lie during her deposition, advise her that doing so would create a conflict because you cannot condone such actions under the GRPC. Then, don’t forget to send the disengagement letter if the client insists on the improper behavior.
Effective communication can prevent legal malpractice claims and Bar complaints. Spending just a few minutes to communicate better with your client can save your hours of trouble later. If you have a question about GRPC 1.4 or any other Georgia ethics Rule, do not hesitate to reach out to our attorneys. We are always here to help.
By Douglas V. Chandler
