The Ethical Duty of Communication
By Martha D. Moore

Communication is fundamental to a healthy lawyer-client relationship. Not only is communication essential to this relationship, but lawyers also have an ethical duty to adequately communicate with clients. This ethical duty of communication is set forth in ABA Model Rule of Professional Conduct 1.4. The rules provide a lawyer shall:

• Promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these rules;
• Reasonably consult with the client about the means by which the client's objectives are to be accomplished;
• Keep the client reasonably informed about the status of the matter;
• Promptly comply with reasonable requests for information; and
• 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.

Not only does inadequate communication result in uninformed clients and the diminution of the lawyer-client relationship, but poor communication also often results in ethics charges, bar grievances and even legal malpractice suits. Inescapably, communication is an important arsenal in the practice of law. Good lawyers must be proficient in the art of communication. Alarmingly, however, many lawyers lack basic communication skills.

Based on my years serving as a prosecutor for the Michigan Attorney Grievance Commission representing lawyers in disciplinary proceedings and serving on the Michigan Attorney Grievance Commission (the watchdog agency responsible for investigating and prosecuting errant lawyers), I have formulated 10 communication rules. These rules, if practiced, will enable lawyers to achieve unwavering lawyer-client relationships and avoid bar grievances.

1) Discuss and settle upon the preferred method of communication with clients.
The technology explosion has resulted in augmented means of communication. Traditional methods of communication, such as letter writing and the use of home telephones, have been eclipsed by numerous contemporary methods of communication, such as fax, e-mail, text messaging and personal cell phones. Given the several communication options, lawyers must know how to communicate with clients so as to preserve attorney confidences and secrets. Lawyers can ill afford to assume a client's favored mode of communication. With increased technology comes increased responsibility and vigilance. For example, lawyers cannot simply dial a client's home telephone number and leave a message or send an e-mail to a common family e-mail address. Doing so may result in the divulgence of client confidences, a violation of ABA Model Rule 1.6.

2) Confirm the content of conversations in writing.
Attorneys are not immune from the litigious environment in which we live. Accordingly, it is imperative that lawyers protect themselves by memorializing client conversations in writing. Writings protect lawyers against spurious allegations made by disgruntled clients. Writings also thwart client confusion, misapprehensions and mistakes.

3) Offer candid advice to clients, considering not only law, but moral, economic, social and political considerations as well.
ABA Model Rule 2.1 provides that in "representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law, but also to other considerations such as moral, economic, social and political factors that may be relevant to the client's situation."

4) Provide clients with sufficient information to make informed decisions about the representation.
ABA Model Rule 1.0(e) defines informed consent as "the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of, and reasonably available alternatives to, the proposed course of conduct." In short, lawyers must advise clients of all relevant facts, including "the good, the bad and the ugly," to enable the client to make informed decisions about the representation.

5) Keep the client reasonably informed of the status of the matter.
Lawyers can easily fulfill this ethical obligation by providing clients with copies of correspondence, pleadings or other documents generated in the matter. Whatever the method of communication, lawyers must ensure that clients are aware of the status of their legal matters.

6) Respond promptly to inquiries.
Clients are entitled to reasonably prompt responses to their inquiries. While lawyers are not required to respond to every client inquiry, lawyers must act in a reasonable, responsible and professional manner. Game playing (so as to avoid communicating with clients) must be avoided. For example, don't play telephone tag with clients - purposefully calling a client at 5:30 p.m. knowing that the client routinely leaves the office at 5:00 p.m. This requirement holds especially true when dealing with pesky or difficult clients, as it is these clients who are likely to malign a lawyer's reputation and file bar grievances.

7) Demonstrate great care in communicating with clients.
Lawyers must not only scrutinize the means of communication, but they must also examine the tone and substance of the communication. Lawyers must refrain from demeaning or belittling clients. Rather, they must treat clients with courtesy, dignity and respect - even the most obnoxious and unpleasant client. Seemingly trivial details matter. Be sure to properly spell the client's name, for example.

8) Be honest.

9) Advise the client of the limits of the representation if the client expects legal services that would constitute a violation of the rules of professional conduct.
Lawyers must be forthright, frank and firm in conveying the lawyer's ethical restraints so as to escape unfair expectations and other disappointments.

10) Listen.
Listening is a crucial communication tool that is often disregarded. Yet, listening is crucial to the development of a vital lawyer-client relationship. Admittedly, lawyers are trained communicators. However, lawyers must occasionally stop and listen. In listening, lawyers gain an understanding and appreciation for client objectives and concerns, which in turn leads to optimal legal representation.