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Legally Speaking

 

Issue: October, 2007
Author: John M. Burman

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Ethically Speaking - The Duty of Communication Under the New Wyoming Rules

The last three issues of the Wyoming Lawyer addressed various aspects of lawyers’ communications with clients, prospective clients, or others. The April and June issues discussed the constitutional and ethical framework for lawyers’ communications through advertisements and solicitation. The August issue focused on trial publicity, lawyers’ so-called extrajudicial statements. Most communications between lawyers and clients, of course, do not fall into either category. They involve either a client providing information to a lawyer, or a lawyer advising the client in response to that information, legal research done by the lawyers, other information, or all three. In either event, such communications are subject to very different ethical and legal standards. In fact, unlike advertisements, solicitations, or extrajudicial statements, all of which are permissible, at least to an extent, a lawyer is ethically and legally obligated to communicate with his or her client to carry out the purposes of the representation.

Regardless of the nature of a lawyer’s practice, the heart of the attorney-client relationship is communication between the lawyer and the lawyer’s clients. First, the attorney-client relationship cannot even be formed without adequate communication between the prospective client and the attorney who has been contacted. Second, communication from the client to the lawyer is essential before the lawyer can even begin to formulate advice, which is always an important element, if not the critical element, of the relationship. Third, the attorney must then communicate that advice back to the client. Finally, there will likely be lots of additional communications, including bills, correspondence, copies of pleadings, and a closing letter when the matter is concluded.

Whatever the context, therefore, the duty to communicate is a functional prerequisite to the existence, the implementation, and the termination of the attorney-client relationship. It is also both an ethical and a legal duty of a lawyer.


The Ethical Duty of Communication
The Preamble to the Wyoming Rules of Professional Conduct (“the Rules) is intended to “provide general orientation” to the Rules. Among other things, the Preamble describes the various roles that lawyers play. One of them is to act as “advisor.” As advisor, a lawyer “provides a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications.” The only way to fulfill that role, of course, is to communicate with the client. And while the Preamble does not add to or detract from the Rules, which are “authoritative,” it provides general guidance for the practitioner, and many of the Preamble’s provisions are echoed in the Rules. One of the concepts that finds expression in both the Preamble and the Rules, themselves, is the duty of communication.

Rule 1.4 has a deceptively simple title: “Communication.” The Rule is deceptively simple because that one word captures the essence of an attorney’s obligations to his or her client, as well as the client’s reciprocal obligation to the attorney. As all the Rules, Rule 1.4 cannot be properly understood if read alone. It must be read in context, together with Rules 1.2 and 2.1.

Rule 1.2 addresses two important issues. First, the scope of a lawyer’s representation, and second, the allocation of authority between lawyers and their clients. Reflecting its contents, the Rule is entitled: “Scope of representation and allocation of authority between client and lawyer.”

Paragraph (c) of Rule 1.2 says that “[a] lawyer may limit the scope of the representation . . .” The same paragraph specifies how any such limitation, on either objectives or means, should be made. Comments [6] through [9] provide additional information (and encouragement) about agreements to limit the scope of representation. Any such agreement should be the result of an “informed decision” by the client. An “informed decision” can be made only after the lawyer has fulfilled his or her obligation under Rule 1.4(b), which is discussed in detail below, to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” Again, communication will be the key.

Paragraph (a) of Rule 1.2 divides authority between clients and lawyers. With specified exceptions, “a lawyer shall abide by a client's decisions concerning the objectives of representation, and, as required by Rule 1.4 [discussed below], shall consult with the client as to the means by which they are to be pursued.”

The Rule is clear. Clients establish the objectives, after consulting about them with the client’s lawyer, and providing they are ethical and legal, and lawyers consult with, but are ultimately responsible for, deciding about the means to achieve those objectives. Neither can happen, of course, without communication between clients and lawyers.

Rule 2.1 is entitled “Advisor.” This Rule requires a lawyer to “exercise independent professional judgment” and render “candid advice.” Both duties, independence and being candid, are part and parcel of communicating with a client.

A lawyer’s duty to give advice is also integral to the definition of the practice of law. That is, the practice of law includes: “[p]roviding of advice . . .” Deciding when advice is legal advice can be a difficult issue, but whatever definition one chooses, the legal advice must be communicated to the client. To facilitate the flow of information between lawyers and clients, communications between an attorney and his or her client are covered by the attorney-client privilege, and they are confidential under the Rules.


Providing a client with an informed understanding of the client’s legal rights
The attorney-client relationship is premised on “the assumption that the client, when properly advised and assisted, is capable of making decisions about important matters.” Assuming the client is competent, the key concept for an attorney is that the client can make decisions “when properly advised.” A client cannot be properly advised unless adequate communication has occurred, communication from the client to the attorney, and then advice back to the client.

As adopted in Wyoming, Rule 1.4(a) describes five specific situations when lawyers must either inform or consult with the client. First, a lawyer has an affirmative duty to inform the client about “any decision or circumstance with respect to which the client's informed decision, . . . is required by these Rules.” Such decisions include establishing the objectives of the representation, deciding whether to settle a civil case, or, in a criminal case, deciding what plea to enter, whether to waive a jury trial, and whether to testify.

Second, a lawyer has an affirmative duty to consult with a client regarding the means by which the client’s objectives are to be pursued. This is a restatement of the obligation set forth in Rule 1.2(a), which says that a lawyer “shall consult with the client as to the means” to be used to try to achieve the client’s goals. The degree of consultation required will vary with the circumstances.

Sometimes, extensive consultation will be required, and sometimes not. Where the decision is an important one, such as whether to call a certain witness at a trial, and there is time for consultation, “this duty will require consultation prior to taking action. In other circumstances, such as during a trial when an immediate decision must be made, the exigency of the situation may require the lawyer to act without prior consultation.” Ultimately, the question is what is reasonable under the circumstances.

Third, an attorney must keep a client “reasonably informed about the status of the matter.” This, too, is an affirmative duty. A lawyer cannot simply wait to be asked about a client’s matter, the lawyer must keep the client informed. The standard is “reasonably informed.” “Reasonably” is defined as “the conduct of a reasonably prudent and competent lawyer.” That, of course, is the objective standard used in malpractice cases and expressly adopted by the Wyoming Supreme Court.

Fourth, an attorney must “promptly comply with reasonable requests for information.” Unlike the previous three duties, this one is not affirmative. It applies only when a client makes a “reasonable request.” As discussed in the previous paragraph, “reasonable” is a defined term and essentially incorporates the objective, malpractice standard that a lawyer must meet.

Finally, an attorney has an affirmative duty to “consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.” The Rule is limited to those circumstances “when the lawyer knows” about the client’s expectations. “Knows” means “actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances.” This Rule must be read in conjunction with two others, Rule 1.2(d) and Rule 8.4.

Rule 1.2(d) says that a lawyer “shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent . . .” Rule 8.4 defines (ethical) misconduct very broadly. First, it is misconduct for a lawyer to “violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.” The Rule also contains two broad catch-all provisions. First, it is misconduct for a lawyer to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” Second, it is also misconduct for a lawyer to “engage in conduct that is prejudicial to the administration of justice.” Read together, these three provisions of Rule 8.4 define misconduct very broadly. The broad, catch-all language of paragraphs (c) and (d) are not just window-dressing. One of the last lawyers to be disbarred in Wyoming was disbarred, in part, for violations of Rule 8.4(c).

As a result of Rules 1.2(d) and 8.4, the “relevant limitations” on the lawyer’s representation are: (1) the lawyer may not assist the client in committing a crime or a fraud; and (2) the lawyer may not engage in unethical conduct, conduct, that is, which falls within the definition of “misconduct.” “Misconduct” includes not only a violation of or an attempt to violate the Rules of Professional Conduct, but conduct which involves “dishonesty, fraud, deceit or misrepresentation” and conduct that is “prejudicial to the administration of justice.”

Paragraph (b) of Rule 1.4 establishes the general standard a lawyer must meet, and echoes the language of the Preamble [2]. That is, “[a] lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” Once again the Rules incorporate the objective standard of a “reasonable” lawyer, and should, therefore, be interpreted in light of how courts interpret a lawyer’s legal duty to communicate. In addition, Wyoming’s Rule has an important exception.

When a lawyer functions as a guardian ad litem, the lawyer plays a fundamentally different role, and his or her ethical obligations shift. That role and the corresponding shift in the lawyer’s duties were previously discussed in this column. When it comes to communication, the lawyer “shall explain a matter” to the extent reasonably required for the client to make an informed decision, “except that a lawyer appointed to act as a guardian ad litem shall be ultimately responsible for making decisions in the best interest of the individual.” This exception reflects the reality that a guardian ad litem is appointed for a person who by definition lacks the capacity to make informed decisions in at least some respect. In such circumstances, the lawyer’s role has to change. A number of Rules contain exceptions or modifications when a lawyer acts as a guardian ad litem, including Rules 1.2, 1.4, 1.6, and 1.14.

Providing a client with an informed understanding of the client’s legal rights may include referring to non-legal considerations. Whether and when doing so is ethically required was discussed in a previous column.


Offering Advice
Generally, a lawyer may wait for a client to seek legal advice. That is not, however, always the case. “[W]hen a lawyer knows that a client proposes a course of action that is likely to result in substantial adverse legal consequences to the client, duty to the client . . . may require that the lawyer offer advice if the client's course of action is related to the representation.” Further, where a relationship between a lawyer and a client is ongoing, “the client sometimes may assume that the lawyer will continue to serve on a continuing basis unless the lawyer gives notice of withdrawal.” The client may have, therefore, a reasonable expectation that a lawyer is looking after the client’s legal affairs. That expectation may give rise to a duty to offer advice.

Perhaps the best examples of when a duty to proffer advice arises are regarding estate planning and business representation. The laws regarding estate planning, especially the tax laws, change periodically, and may create a need to review and potentially revise estate plans. Whether the lawyer who drafted the estate plan has a duty to contact and advise of the changes depends on whether the lawyer has properly terminated the attorney-client relationship, including notifying the client that the lawyer does not represent the client. If that has occurred, the client does not have a reasonable expectation that the lawyer is looking after his or her affairs. By contrast, if the relationship has not been terminated, the client will likely expect, and reasonably so, that the lawyer is looking after his or her affairs. If that is the case, the lawyer likely has an affirmative duty to notify current clients, including those whose estate plans are completed, but the attorney-client relationship was never terminated, of changes in the law and that it may be appropriate to review and revise the clients’ estate plans.

The same expectations arise in business representation. An attorney who represents a business on an ongoing basis may well have an affirmative duty to advise the business of important changes that may affect the business. The question will always be whether the client has a reasonable expectation of the lawyer’s providing such advice. Whether that expectation is reasonable depends on the representation agreement between the parties, and their course of conduct. The representation agreement is the ideal place to delineate the lawyer’s obligations, including the obligation, if any, to proffer advice. If that is not done, the course of dealings between the parties will likely create an implied agreement defining the attorney-client relationship, the terms of which will probably be disputed, and likely resolved in the client’s favor. If a lawyer for a business does not want to have a duty to proffer advice, the lawyer better make that clear in a written representation agreement. Otherwise, the question will be whether the client reasonably expected the lawyer to act.

A lawyer’s ethical obligation to advise his or her clients, including the obligation, at times, to advise the client about non-legal considerations, is reflected in the legal standard applied to lawyers.


The Legal Duty of Communication
The general standard applied in malpractice cases in Wyoming is that “[i]t is the duty of an attorney to advise the client promptly whenever he has any information to give which it is important the client should receive” because “[a] person acting in a fiduciary or confidential capacity has a duty to make a full and fair disclosure of material facts to a person reposing confidence in him.” This standard is qualified by the kind of advice or assistance involved. Only “material matters” or “important provisions” fall under this general malpractice standard.

A lawyer has more, however, than the simple duty to furnish advice. When requested, the lawyer must also “volunteer opinions when [they are] necessary to further the client’s objectives.” The duty to volunteer opinions may even exist where legal problems fall outside the express scope of representation, but are “reasonably apparent.”

While a single failure to respond to a letter or a phone call will typically not be considered a breach of the lawyer’s duty to keep his client informed, a pattern of such behavior may be considered such a breach. Other instances where a lawyer has the duty to inform a client include when the lawyer does not wish to argue a claim about which the client feels strongly, when the lawyer concludes that an appeal would be frivolous, when an appeal would be a waste of money an offer of settlement that is not unconscionable or opportunities for settlement, the legal implication of potential or past decisions, any defects or restrictions upon title of land when the lawyer has contracted to do a title search, requests for discovery, withdrawal from a case, suspension from the practice of law and the amount and requirement of fees owed.

Some controversy currently exists over whether an attorney has a duty to disclose to a client that the lawyer’s advice is based upon a legal issue unsettled in the jurisdiction. When that advice is about settlement of a claim, courts tend to hold that the attorney does have the duty to disclose uncertainties because “it is the client, not the attorney, who bears the risk.” Some courts have held more broadly that a lawyer “[has] a duty to advise [his client] on the potential exposure should his interpretation [of the law] be deemed incorrect.” Further, “[t]he absence of a guarantee [that the lawyer’s advice is correct] does not foreclose liability for the adverse consequences of a negligent failure to advise a client of the uncertainty of the advice given.” On the other hand, other courts have adopted the view that “[t]o require the attorney to further advise a client of the uncertainty in the law would render the exercise of . . . professional judgment meaningless.” These courts tend to express concern regarding the lawyer’s professional reputation when relying upon a lay client’s choice of direction. The former view, that lawyers should disclose uncertainty, is the better view as without that knowledge, the client cannot make an informed decision.

The Wyoming Supreme Court has only addressed the issue of informing or consulting with a client indirectly. In Carlson v. Carlson the court expressed concern regarding the treatment of a client who had contacted two attorneys, neither of whom returned phone calls or did the work for which they had been contacted. That case was not, however, a suit directed at the attorneys, and thus the court’s concerns were not addressed at length. In Bender v. Phillips the court held that an attorney was not guilty of fraud for not disclosing that he was a former partner of opposing counsel. The court’s ruling, however, relied heavily upon the failure of the plaintiff to produce evidence indicating an agreement between the parties to defraud. Finally, in Halberstam v. Cokeley, the court held that an attorney who refused to accept service on behalf of his client, had a duty under Rule 1.4 to keep in touch with the client to determine when service occurred so a default could be avoided. Once again, this was not a suit against the attorney. Rather, the attorney’s conduct was used as evidence of good cause for failing to file an answer.

Despite the absence of an opinion by the Wyoming Supreme Court holding that attorneys have a legal duty to communicate with their clients, it is clear that such a duty exists. It exists because that is what a reasonable lawyer in Wyoming would do, and that is the standard Wyoming lawyers must meet.


Summary
While the organization and language of Rule 1.4 (“Communication”) has changed, the general ethical requirements have not. A lawyer still has three interrelated ethical duties, duties that were part of the Wyoming Rules in effect before July 1, 2006. First, a lawyer must consult with the client about the means to be used to try and achieve the client’s objectives. Second, a lawyer must comply promptly with a client’s reasonable requests for information about the client’s legal matter. And finally, and most importantly, a lawyer must “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation . . .” Doing so is the heart of the attorney-client relationship, and the quoted language sums up three critical aspects of being a lawyer: (1) the explanation must meet the standard of “reasonableness;” (2) the client, not the lawyer, is to make important decisions about representation; and (3) the goal is for clients to make “informed decisions,” not “good” decisions or the ones the lawyer thinks the client should make.

Although lawyers do not generally have an obligation to offer advice to clients, there are two times when that rule changes. First, a lawyer must step in when the lawyer “knows” that a client “proposes a course of action that is likely to result in substantial adverse legal consequences to the client . . . [and the matter is] related to the representation.” Second, a lawyer must proffer advice when a client has a reasonable expectation that the lawyer is looking after the client’s affairs and will offer advice when appropriate. Whether that expectation exists, and whether it is reasonable, depends on the agreement between the lawyer and the client, which may be expressed or implied, the course of dealing between the lawyer and the client, or both.

Finally, a lawyer’s legal duty to communicate with his or her clients is the same as the ethical one. That is, the communication must meet the standard of a reasonable lawyer. And when it comes to communication, a reasonable lawyer would meet his or her ethical duties, and by doing so, the client will be reasonably informed and the lawyer will have satisfied the legal duty of communication.


John M. Burman teaches professional responsibility at the University of Wyoming College of Law. If there are issues you would like to see addressed in this column, Professor Burman may be reached by e-mail at jmburman@uwyo.edu.

The views and opinions expressed and included in "Ethically Speaking" are those of the author only and do not constitute an opinion, finding or viewpoint, official or unofficial, of the Wyoming State Bar or the Board of Professional Responsibility.



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