LACBA Update Back Issues - April 2015

Attorneys Have a Duty to Adequately Communicate with Their Clients—No Excuses!

By Gayle Eskridge, Principal, Eskridge Law, and member, LACBA Professional Responsibility and Ethics Committee. She can be reached at geskridge@eskridgelaw.net. The opinions expressed are her own.

Every attorney admitted to practice in California has taken an oath that includes a promise “faithfully to discharge the duties of an attorney at law to the best of his knowledge and ability.” [Bus. & Prof. Code §6067.] The State Bar Act enumerates various duties of an attorney, one of which is the duty to adequately communicate with the client. [CRPC 3-500; Bus. & Prof. Code §6068(m).]

“Adequate communication with clients is an integral part of competent professional performance as an attorney.” [Calvert v. State Bar (1991) 54 Cal. 3d 765, 782.] “The attorney-client relationship is a fiduciary relationship of the very highest character, imposing on the attorney a duty to communicate to the client whatever information he has or may acquire in relation to the subject matter of the transaction.” [Matter of Peavey (Rev. Dept. 2002) 4 Cal. State Bar Ct. Rptr. 483, 491.]

Like all the other duties of competence, the duty to adequately communicate with the client is not waivable. [CRPC 3-400; L.A. County Bar Ass’n Form. Opn. 471 (1993).] It does not matter what type of fee agreement exists between the attorney and client. [In re County of Orange (CD CA 1999) 241 BR 212, 223, fn. 18.]1 It also does not matter whether counsel has been retained or appointed. [ABA Form Opn. 06-441.] The requirement to adequately communicate with one’s client is also not reduced by the fact that the attorney is working on a pro bono basis. [Segal v. State Bar (1988) 44 Cal. 3d 1077, 1084.] It also makes no difference if the client was supposed to be paying for the services but has failed to do so. The attorney still has a duty to adequately communicate with the client. [Fitzpatrick v. State Bar (1977) 20 Cal. 3d 73, 85.]

The duty to communicate includes:

1) Keeping the client reasonably informed about significant developments relating to the employment. [CRPC 3-500; Bus. & Prof. Code §6068(m).]

2) Promptly complying with reasonable client requests for information. [CRPC 3-500; Bus. & Prof. Code §6068(m).]

3) Promptly complying with reasonable client requests for copies of significant documents. [CRPC 3-500; Bus. & Prof. Code §6068(n).]

An attorney is even required to communicate with persons who reasonably believe they are clients of the lawyer to the extent of advising these persons that they are not clients. [Butler v. State Bar (1986) 42 Cal. 3d 323, 339.]

Informing the Client of “Significant Developments.” While what constitutes a “significant development” of course depends on the purpose of the representation, the sophistication of the client, and numerous other variables, there are some specific events or conditions that must be communicated to the client. For example, a motion seeking discovery sanctions against an attorney and client is ordinarily a “significant development” that must be communicated to the client. [Cal. State Bar Form. Opn. 1997-151.] Likewise, hiring a contract attorney to work on a client’s matter may be considered a “significant development.” [Cal. State Bar Form. Opn. 2004-165.] Outsourcing legal services may also constitute a “significant development.” [CRPC 3-500; Bus. & Prof. Code §6068(m); L.A. County Bar Ass’n Form. Opn. 518 (2006).]

In a criminal matter, an attorney has a duty to communicate all terms and conditions of any settlement offer made to the client. [CRPC 3-510(A)(1).] In all other matters, an attorney has a duty to communicate all amounts, terms, and conditions of any written offer of settlement made to the client. [CRPC 3-510(A)(2); Bus. & Prof. Code §6103.5(a).] An attorney must also communicate oral settlement offers in civil matters if they are “significant.” [CRPC 3-510, Discussion.] These requirements even include offers that are not binding. [Matter of Yagman(Rev. Dept. 1997) 3 Cal. State Bar Ct. Rptr. 788, 795.] Additionally, the fact that the client does not speak English does not excuse the duty to communicate settlement offers. [See Gold v. State Bar (1989) 49 Cal. 3d 908, 911, 912.]

Other “significant developments” that are specifically required to be disclosed to the client include (but are not limited to):

Details concerning the attorney’s business or financial dealings with the client or other interests that are adverse to the client. [CRPC 3-300.]

The attorney’s legal, business, financial, professional, or personal relationship with a party, witness, or other third party in the client’s matter. [CRPC 3-310(B)(1).]

Certain relationships between the attorney and the opposing counsel. [CRPC 3-320.]

Other conflict-type situations. [CRPC 3-300, 3-310, and 3-320.]

The fact that a client has been named as a party in a civil action. [Shalant v. State Bar (1983) 33 Cal. 3d 485, 488.]

Fee sharing arrangements with other attorneys. [CRPC 2-200(A)(1).]

The purchase or sale of an existing law practice of a living or deceased lawyer. [CRPC 2-300(B)(1).]

The attorney’s receipt of funds or property on behalf of the client. [CRPC 4-100(B)(1).] (“Prompt” notification to the client is required.)

Promptly Complying with Reasonable Client Requests for Information. The duty to promptly comply with reasonable client requests for information includes the duty to promptly return client phone calls and e-mails. An attorney’s failure to promptly return the client’s phone calls violates the duty of competence. [Aronin v. State Bar (1990) 52 Cal.3d 276, 287.]

Promptly Complying with Client Requests for Documents. Although an attorney must promptly comply with reasonable client requests for copies of significant documents, this requirement is not intended to apply to documents that are subject to protective orders or nondisclosure agreements. [CRPC 3-500, Discussion.] This requirement is also not intended to override statutory or decisional law prohibiting criminal defense attorneys from disclosing certain information to their clients. [CRPC 3-500, Discussion.]

Based on the above, the best course of action would be to communicate anything that the attorney believes might possibly be considered to be significant to the client, and to promptly return all phone calls, e-mails, and text messages.

1 “Ethics opinions and rules and standard promulgated by other jurisdictions and bar associations may also be considered.” CRPC 1-100(A).

LACBA's Professional Responsibility and Ethics Committee welcomes new inquiries from LACBA members regarding ethical issues or concerns about professional responsibilities. The identity of the inquirer is kept confidential within the committee. The committee, however, does not publish formal opinions that are the subject of any pending litigation involving the inquirer. If you have an ethical question that you would like the committee to consider, you can mail your written inquiry to Los Angeles County Bar Association, Professional Responsibility and Ethics Committee, P.O. Box 55020, Los Angeles, CA 90055-2020, or e-mail your inquiry marked “Confidential” to Member Services at msd@lacba.org.