Related Professionals
Reprinted with permission from the 10/23/24 edition of The Legal Intelligencer’s Ethics Column ,©2024 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877.256.2472 or asset-and-logo-licensing@alm.com.
When it comes to litigation, much of the practice is designated to communications with opposing counsel, co-counsel, a mediator, a court and, of course, a jury. In my experience, lawyers rarely find themselves in the crosshairs of the Office of Disciplinary Counsel for alleged shortcomings concerning their lack of communicative efforts in those settings. Court-mandated deadlines largely force lawyers to timely communicate with their adversaries and the court. However, these same deadlines can, at times, cause lawyers to overlook, or worse, ignore, certain important tenets: the duty to keep clients reasonably informed about the status of their case, to “promptly comply with reasonable requests for information” and to ensure that clients are positioned to make informed decisions concerning the representation. See Pa. R.P.C. 1.4. It is easy to imagine a situation where a lawyer is working under an impending deadline in one matter when a case update request arrives from a client in an unrelated matter. It is also easy to imagine that, in such a scenario, the lawyer overlooks (or ignores) the update request. Doing so may ultimately trigger the ignored client to file a complaint with the Office of Disciplinary Counsel and, in my experience, Disciplinary Counsel does not treat these types of complaints lightly, especially if it is shown that the lawyer has engaged in a pattern of snubbing clients’ update requests. Certain best practices can help lawyers protect themselves against this type of risk.
The predominance of e-filing, at least in theory, should assist lawyers in keeping clients reasonably informed about the status of their cases. As part of a lawyer’s internal operating procedures, a lawyer would be well advised to have a person within the office specifically designated to forward clients all e-filed documents upon receipt. This can be accomplished with a few mouse clicks and should help ensure the client is kept informed about the status of the case, while at the same time potentially reduce the frequency that a client may submit the lawyer update requests.
Moreover, sending your client copies of e-filed documents should also help a lawyer comply with Pa. R.P.C. 1.4(b). Rule 1.4(b) obligates lawyers to explain matters to their clients such that the client can “make informed decisions regarding the representation.” Following a client’s receipt of an e-filed document, a dialogue will likely be triggered between the client and the lawyer during which: the lawyer can explain the significance of the filing and the lawyer and client can discuss a planned strategy. This dialogue can be oral or in writing. What is of most importance, however, is that the lawyer and client have the dialogue. Where the dialogue initially occurs orally, a lawyer’s follow up written confirmation of the discussion could go a long way in defending against a purported Rule 1.4(b) violation. At a minimum, lawyers should maintain within their client file some indicia of what transpired during the conversation in case a Rule 1.4(b) violation is later levied against the lawyer.
A trickier situation may arise from the client that sends his lawyer frequent emails requesting updates. As litigators, we know that, at times, a client’s case may become stagnant while, for example, all parties are awaiting receipt of a court’s potentially dispositive decision. As a result, there may be simply nothing to update. This may cause the lawyer to take the client’s update request for granted and thus have it go unanswered. Such conduct likely violates Rule 1.4(a)(4) and will potentially subject the lawyer to a disciplinary matter.
Clients who are unversed in litigation may have difficulty understanding why their case is “not moving” or “taking so long.” Lawyers facing these types of questions cannot simply ignore the client’s requests for updates. As difficult as it may be, Rule 1.4(a)(4) requires lawyers to “promptly comply with reasonable requests for information.”
To quell potential concerns regarding perceived delays, lawyers should set client expectations from the start of the representation by explaining how litigation can be extremely protracted given the number of variables that can relate to any single case. For example, during the pendency of a case, extensive motion practice, discovery disputes and mere scheduling difficulties can result in case delays. Best practice would be for lawyers to include this type of information within their fee agreement. Where these issues are discussed and memorialized in writing, lawyers are positioned to establish that they provided the client information allowing the client to make informed decisions regarding the representation.
If lawyers believe the request is not “reasonable,” I recommend that they (or a staff member) contact the client to: acknowledge receipt of the client’s communication and schedule a meeting during which the lawyer can explain to the client the current status of the case. During that meeting, if the lawyer truly believes the client’s requests are not “reasonable,” the lawyer must have a frank discussion with the client to explain why the frequent update requests are not warranted. Thereafter, the lawyer should memorialize the conversation via letter addressed to the client. At that juncture, both the lawyer and the client may be positioned to determine whether the lawyer can continue with the representation. Beware, if the lawyer ultimately seeks to terminate the representation, he must do so in conformity with the Pennsylvania Rules of Professional Conduct and with the possible assistance of outside counsel.
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