Attorney-Client Communication, Part 2
ATTORNEY-CLIENT COMMUNICATIONS, Part 2
Last week, we looked at the attorney’s duty to communicate properly and promptly with clients, and examined the basic obligations an attorney has with regard to client communications. In addition to keeping clients informed about substantive and procedural matters relating to their cases or issues, attorneys also have a duty to inform the client about developments and situations which impact the attorney-client relationship.
Let’s take a look at what this additional duty entails.
In addition to the communications and information discussed last week, an attorney must:
1. Disclose the attorney’s relationship with third parties, or interests, in the subject matter involved in the representation. This could include current or former clients, investments held by the attorney (or the attorney’s partners), or other actual or potential conflicts of interest. Disclosures should be detailed enough to allow the client to make informed decisions about the representation and any conflict of interest issues.
2. Disclose the attorney (or firm)’s business or financial dealings with the client, entities owned by the client, and other parties in the suit or matters at issue. Again, disclosures need to be detailed enough to give the client full disclosure and all relevant information.
3. Disclose relationships between the attorney and attorneys or representatives of the other parties in the matter at issue. This includes both business relationships and personal relationships, and may extend to members of the attorney’s immediate family as well as the attorney him or herself.
4. Disclose the attorney’s actual or potential role as a witness in the client’s matter (if relevant).
5. Disclose fee-splitting arrangements between attorneys.
6. Disclose and report the receipt of a client’s funds or property. This could be in connection with settlements, evidence, or any other situation in which the attorney receives money or other items belonging to a client.
7. Communicate settlement offers promptly and thoroughly. If an attorney receives a settlement offer or an offer to compromise, the attorney must convey the existence and terms of the offer to the client as soon as reasonably possible.
8. Make necessary disclosures in connection with the sale or purchase of a law practice. This applies whether the attorney is selling his or her practice, acquiring another, or engaging in any other practice-related transaction for which disclosure is required by law or the rules of ethics.
Note: this is not an exhaustive list of the situations in which an attorney must provide information or disclosures to a client. These are general categories, and an attorney or client’s specific situation may vary.
These matters are considered part of the lawyer’s legal duties, and not merely guidelines or recommendations. Attorneys should adhere to notice and disclosure requirements carefully and thoroughly, and err on the side of disclosure when there is any question about whether information falls within the mandatory disclosure categories.
ATTORNEYS SHOULD KEEP A RECORD OF CLIENT COMMUNICATIONS
Smart attorneys will keep a “paper trail” of client communications (including copies of relevant emails) in order to document the conversations, disclosures, and other communications with each client. Although the rules for attorney practice don’t require an absolute paper trail of all communications, it’s helpful to document each step and every interaction, in case a record is needed in the future.
SOMETIMES, THE LAW REQUIRES LAWYERS TO WITHHOLD INFORMATION
If a lawyer reasonably believes the client would react illegally (or “imprudently”) to certain information, the attorney may be justified in delaying communication of that information to the client. This is dangerous ground, however, and attorneys should make the decision to delay or withhold information with great caution. A court may hold the attorney liable for malpractice if the attorney withholds information and had no legal right (or obligation) to do so. Attorneys should consult with co-counsel, a partner, or other resources, and always confirm through research that withholding or delaying information is legally justified.
Sometimes, court orders and practice rules require an attorney to withhold information from a client. This usually happens in situations where a lawyer obtains copies of privileged information belonging to someone else, which the client has no legal right to obtain. (For example: information protected by trade secret or other laws, such as customer lists or recipes.)
EXERCISE CAUTION IN COMMUNICATIONS WITH CLIENTS
Ultimately, the obligation for deciding when and how to communicate information to the client belongs to the attorney