By Daniel W. Hager
Corporate Counsel, Ahern Insurance Brokerage.
Written for 2021 issue of Arizona Attorney Magazine
Effective communication with clients is not only ethically required but it substantially reduces risk to lawyers. A very large percentage of malpractice and ethics claims arise from poor communication.
Documenting advice to clients and their directions about the representation is not required by Arizona’s ethical rules in every situation. There are exceptions, such as getting informed written consent in a conflict situation. However, failing to document advice and client directions can substantially increase the risk of – and exacerbate – malpractice and ethical complaints.
ER 1.2 of the Arizona Rules of Professional Conduct require that “a lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by ER 1.4, shall consult with the client as to the means by which they are to be pursued.”
ER 1.4(a) requires that lawyers must “(1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in ER 1.0(e), is required by these Rules; (2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) 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.”
Lawyers may not take significant action without a client’s knowledge and consent, especially regarding settlement offers or other important decisions that must be made. These rules require lawyers to generally abide by client decisions and to communicate effectively with clients. They do not require that those client decisions and communications be documented in writing. However, it is always the best practice to make a written record of such decisions by, and communications with, clients.
Particularly regarding major strategic decisions, settlements, and other important decisions that are not documented, if the matter ultimately goes badly for the client there is a significant risk that recollections may differ. For example, a client may insist on a course of action the lawyer believes – and tells the client – will have adverse consequences for the client. If those consequences come to pass – and the lawyer has not confirmed in writing the advice given, the client’s refusal to follow that advice, and the client’s insistence that another course be followed – the client may blame the lawyer for the bad outcome. The client may even claim the lawyer decided the course to take without the client’s input or consent, or that the lawyer consciously refused to follow the client’s direction.
Without a writing memorializing the lawyer’s advice and the client’s directions, it becomes the lawyer’s word against the client’s in any later dispute. Such “lawyer said/client said” situations increase the risk of bad outcomes in both ethics grievances and malpractice claims.
One effective way to communicate and document limits on a lawyer’s authority and obligations is to use written engagement agreements that clearly spell out the scope of the representation. Equally importantly, they should specifically identify areas outside the scope of the representation, such as providing tax advice. Well-drafted engagement agreements documenting the scope of the representation offer the additional benefit of the client having signed them as understood and agreed to.
Some clients may present situations where even carefully documenting important communications is not enough. For example, a client may insist on taking actions the lawyer knows are criminal and seeks counsel’s advice on how to avoid being caught. Or a client may direct the lawyer to take other unethical actions. In such situations, documentation of communications is critical, but withdrawal from the representation altogether is the wisest course and may in fact be required under the applicable ethical rules.
Fortunately, most clients do not present such extreme situations. But for any client, the lawyer is well-advised to memorialize or confirm all important client decisions and communications in writing. Some situations may require a lengthy letter or memo to the file. In other situations, a brief email confirming the client’s direction or consent to take a particular action is sufficient. The key is to memorialize such important communications in writing.
Good communication with clients generally, and about major decisions in particular, will greatly reduce the risk of ethics grievances and malpractice claims. Creating a written record of those communications provides lawyers with a critical additional layer of protection.