SEPTEMBER 2006

Practice Tips from Bar Counsel: RPC 1.4 (Communication)

COMMUNICATE WITH YOUR CLIENTS, EVEN THOSE YOU DON’T LIKE

By Phil Pattee, Assistant Bar Counsel

Imagine for a moment that you’re in jail and charged with, say, murder.  You tell people that you’re innocent, which technically is true for all defendants before conviction.  But others, like the prosecutors, think that you did it and they have a bunch of evidence.

You think it would be a good idea to talk to your lawyer about that evidence and any possible defenses.  After all, the other guy did have a gun.

Heck, you’d be happy to just talk about the next hearing.

            Unfortunately, you haven’t seen your attorney in two months.  He won’t answer your calls or respond to your numerous letters.

            Pretty soon, you and the jailhouse lawyers might start thinking that your attorney is violating the Rules of Professional Conduct, and you might be right.

            By far, the most common complaint against attorneys is lack of communication.  No matter what other misconduct is alleged or which area of law is involved, a grievance to the State Bar of Nevada usually includes a variation of the phrase, “my lawyer won’t return my calls.”

            Pursuant to RPC 1.4 (Communication), formerly Supreme Court Rule 154, an attorney must keep the client reasonably informed about the status of his or her matter.  The lawyer also shall promptly comply with reasonable requests from the client for information. 

The key concept here is “reasonably.”  Most attorneys have had the headache client who demanded constant updates.  Failing to immediately respond to endless requests for information is not necessarily an ethical violation.  In fact, it should be a hint to get out of the representation if possible.

However, ignoring calls and letters from a client until just before the next important hearing or deadline is almost surely an ethical violation.  A five-minute conversation on a bench outside the courtroom probably isn’t adequate.  An attorney might be handling the case competently and diligently, but he or she cannot ignore a client’s reasonable inquiries just because the case is under control.

RPC 1.4 also requires an attorney to promptly inform a client of any decision or circumstance for which his or her “informed consent” is required.  An attorney must also reasonably consult with the client about the means by which his or her objectives shall be met.

Translation:  When a client’s informed consent is needed in order to proceed, you must relay that information in a reasonably prompt manner.  Similarly, you must reasonably discuss how to achieve the client’s goal.  You can’t go it alone.  The client gets to go along for the ride in his own case.

Complying with RPC 1.4 is probably the easiest ethical requirement for an attorney to satisfy.  If you file something in court or send something to another lawyer, forward a copy to the client.  Include a short letter explaining what it is and, if applicable, whatever else is happening with the case. 

Responding to e-mails from a client is even easier.  Just hit the “reply” button and type in a few lines answering the question.  Don’t forget to print out a copy for Mr. Headache’s file.

Bottom line:  Unless there is a very good reason to keep your client in the dark, let the client know when you do something with the file.  Keeping the client informed should be the rule, not the exception.  In fact, it is the Rule.