For people that know me, I know I sound like a broken record talking about communication all the time. Last week a seasoned lawyer called us for advice on a matter of his client’s settlement remorse. The lawyer had gotten oral authority from his client to settle the client’s medical malpractice case within a certain six-figure settlement range. That is all you need right? Wrong! The client’s authority to settle was not confirmed in writing apparently. The case settled on the higher end of the authorized range, but later the client claimed the lawyer did not have his authority to settle.
In our practice, we see daily that communication (or the lack thereof) is at the core of nearly every dispute, malpractice claim and grievance. As practicing Georgia attorneys, we know that the practice of law is not just about statutes, case law, and case strategy. Practicing law is about people. And at the heart of every attorney-client relationship is communication. That is why it is so imperative that your communications with every client is clear, timely, and professional. Georgia Rule of Professional Conduct 1.4 sets the minimum standard for how we communicate with clients, but more importantly, it reminds us of the ethical duty to treat clients as informed participants in their own legal matters.
Let’s revisit Rule 1.4, not just in theory, but in practical, everyday terms we encounter in practice.
A Refresher on Rule 1.4
Rule 1.4 requires every Georgia lawyer to:
- Promptly inform the client of decisions or circumstances requiring the client’s informed consent.
- Reasonably consult with the client about how to accomplish their objectives.
- Keep the client reasonably informed about the status of the matter.
- Promptly comply with reasonable requests for information.
- Consult with the client when they expect assistance you cannot ethically or legally provide.
It also requires us to explain matters to the extent reasonably necessary for the client to make informed decisions about their representation and provide their informed consent. Rule 1.0(l) defines informed consent as “the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.” Obviously, the crux of the fulsomeness of the disclosure lies with the adequacy of the information you provide and the explanation.
The maximum penalty for violating this Rule is a public reprimand. However, we all know that in today’s social media and Google Review environment, the real risk is the erosion of client trust and professional reputation.
Practical Applications: When and How to Communicate
The comments to Rule 1.4 offer clear, real-world guidance:
- Settlement Offers and Plea Bargains:
The Rule requires prompt communication of any settlement proposal or plea offer unless prior authority or instructions from the client dictate otherwise. If you receive an offer from opposing counsel, you are ethically obligated to relay it. Even if the offer is clearly unacceptable or falls short of expectations, it is the client’s decision to make, not yours. What’s more, please confirm all client acceptance or denials in writing! Written confirmation will save you one day and make our job of defending you a whole lot less expensive and time consuming for you. - During Trials and Time-Sensitive Matters:
Emergencies happen. In trial, hearings, or negotiation, immediate decisions may be necessary. Rule 1.4 recognizes these realities but requires that you inform the client as soon as practicable. Acting without prior consultation is permitted only when it is reasonable under the circumstances, and you must follow up with the client about the action taken. - Client Inquiries:
Proactive, regular communication reduces the volume of anxious client calls. However, when a client does reach out, prompt acknowledgment is required, even if a full answer must follow later. The timeliness of your response is measured against what is reasonable under the circumstances. Avoiding calls or emails because the update is unpleasant or inconvenient is a clear ethical misstep likely to result in a complaint. - Delivering Difficult News:
Difficult conversations are part of this profession. Rule 1.4 does allow a lawyer to delay disclosure if immediate communication would seriously harm the client (such as where a psychiatrist indicates that sharing certain information could be detrimental). That said, this exception is narrow, and it cannot be used to delay uncomfortable updates or to serve your own convenience.
Reasonable Explanation: What’s Required?
You are not obligated to give your client a law school-level dissertation, but your explanations must be sufficient for an intelligent, responsible adult to make informed decisions. Better yet, I like to ask the client to repeat back to me their understanding of what I just explained. You will be surprised at what clients “think” they hear. Here are a few examples:
- Before entering negotiations, explain the key terms, risks, and alternatives.
- In litigation, discuss the overall strategy, likely outcomes, and decisions with financial, business or ethical implications.
- You are not expected to detail every tactic, but significant moves, especially those involving material risk or cost, must be communicated in advance.
Special Circumstances to Keep in Mind
- Clients with Diminished Capacity:
Rule 1.14 provides guidance here, but Rule 1.4 still requires appropriate, tailored communication, even when dealing with clients with diminished capacity. - Corporate and Organizational Clients:
Communication should occur with the appropriate decision-makers. Not every employee or member needs to be informed, but those authorized to act on behalf of the entity must be. - Complex or Ongoing Matters:
For complex or long-running cases, regular status updates and systems for periodic reporting can fulfill your duties under Rule 1.4 and reduce the risk of client dissatisfaction. While periodic oral reports are acceptable, you should always send a written confirmation of the discussion.
A Final Reminder
Effective communication is not just about avoiding disputes and grievances. Effective communication is about upholding our obligations to our clients and the profession. Regular, candid, and timely communication (good and bad) fosters trust, minimizes misunderstandings, and ensures ethical, competent representation.
Rule 1.4 may be one of the more straightforward Rules on paper, but in practice, it demands continuous attention and professional discipline. Good lawyers know the law and great lawyers keep their clients well informed about how the law should guide the client’s decisions.
By: Douglas V. Chandler
