Rule 1.4. Communication

(a) A lawyer shall:

(1) 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;

(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.

(b) The lawyer shall give the client sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued.

(c) A lawyer who provides any form of financial assistance to a client during the course of a representation shall, prior to providing such financial assistance, inform the client in writing of the terms and conditions under which such financial assistance is made, including but not limited to, repayment obligations, the imposition and rate of interest or other charges, and the scope and limitations imposed upon lawyers providing financial assistance as set forth in Rule 1.8(e).

Background

The Louisiana Supreme Court adopted this rule on January 21, 2004. It became effective on March 1, 2004. The court amended this rule in 2006 to add paragraph (c), which implements amendments to Rule 1.8(e) restricting the ability of a lawyer to provide financial assistance to a client.

Paragraph (a) of this rule is identical to the ABA Model Rule of Professional Conduct 1.4(a) (2002).

Paragraph (b) of this rule differs from Model Rule 1.4(b). The Louisiana rule provides that the lawyer shall give the client “sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued,” while the ABA counterpart provides that the lawyer “shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” Compare La. Rules of Professional Conduct Rule 1.4(b) (2004) with Model Rule of Professional Conduct Rule 1.4(b). The LSBA Ethics 2000 Committee recommended divergence from the ABA rule to clarify that, in accord with Rule 1.2, both lawyer and client have a role to play in making decisions concerning the representation. However, the Committee intended no major substantive difference from the ABA rule.

Paragraph (c) of this rule is not included in ABA Model Rule 1.4.

Louisiana Revision Notes

Prior to the 2004 revision of the rule, paragraph (b) of the Louisiana rule provided that a lawyer was required to communicate with his client only “to the extent the client is willing and able to do so.” See La. Rules of Professional Conduct Rule 1.4 (1987). The LSBA Ethics 2000 Committee recommended deleting the language because it could be misinterpreted to suggest that a lawyer need not communicate with a client who is either “unwilling” or “unable” to speak with the lawyer. As to the “unwilling” client, the lawyer and client presumably would have serious issues that must be resolved under Rules 1.2 and 1.16 rather than by this rule. As to the “unable” client, the lawyer should consult Rule 1.14 rather than simply proceeding without communication.

ABA Revision Notes

The ABA revised Model Rule 1.4 to consolidate all rules imposing a general duty to communicate with a client within a single rule. In addition, the ABA added the word “reasonably” to paragraph (a)(2) to preclude a reading of the rule that would always require consultation in advance of the lawyer taking any action on behalf of the client, even when such action is impliedly authorized under Rule 1.2(a). See ABA Ethics 2000 Commission Revision Notes to Model Rule 1.4 (2002).

Comments to ABA Model Rule 1.4

Generally

[1] Reasonable communication between the lawyer and the client is necessary for the client effectively to participate in the representation.

Communicating with Client

[2] If these Rules require that a particular decision about the representation be made by the client, paragraph (a)(1) requires that the lawyer promptly consult with and secure the client’s consent prior to taking action unless prior discussions with the client have resolved what action the client wants the lawyer to take. For example, a lawyer who receives from opposing counsel an offer of settlement in a civil controversy or a proffered plea bargain in a criminal case must promptly inform the client of its substance unless the client has previously indicated that the proposal will be acceptable or unacceptable or has authorized the lawyer to accept or to reject the offer. See Rule 1.2(a).

[3] Paragraph (a)(2) requires the lawyer to reasonably consult with the client about the means to be used to accomplish the client’s objectives. In some situations — depending on both the importance of the action under consideration and the feasibility of consulting with the client — 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. In such cases the lawyer must nonetheless act reasonably to inform the client of actions the lawyer has taken on the client’s behalf. Additionally, paragraph (a)(3) requires that the lawyer keep the client reasonably informed about the status of the matter, such as significant developments affecting the timing or the substance of the representation.

[4] A lawyer’s regular communication with clients will minimize the occasions on which a client will need to request information concerning the representation. When a client makes a reasonable request for information, however, paragraph (a)(4) requires prompt compliance with the request, or if a prompt response is not feasible, that the lawyer, or a member of the lawyer’s staff, acknowledge receipt of the request and advise the client when a response may be expected. A lawyer should promptly respond to or acknowledge client commmuncations.

Explaining Matters

[5] The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so. Adequacy of communication depends in part on the kind of advice or assistance that is involved. For example, when there is time to explain a proposal made in a negotiation, the lawyer should review all important provisions with the client before proceeding to an agreement. In litigation a lawyer should explain the general strategy and prospects of success and ordinarily should consult the client on tactics that are likely to result in significant expense or to injure or coerce others. On the other hand, a lawyer ordinarily will not be expected to describe trial or negotiation strategy in detail. The guiding principle is that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client’s best interests, and the client’s overall requirements as to the character of representation. In certain circumstances, such as when a lawyer asks a client to consent to a representation affected by a conflict of interest, the client must give informed consent, as defined in Rule 1.0(e).

[6] Ordinarily, the information to be provided is that appropriate for a client who is a comprehending and responsible adult. However, fully informing the client according to this standard may be impracticable, for example, where the client is a child or suffers from diminished capacity. See Rule 1.14. When the client is an organization or group, it is often impossible or inappropriate to inform every one of its members about its legal affairs; ordinarily, the lawyer should address communications to the appropriate officials of the organization. See Rule 1.13. Where many routine matters are involved, a system of limited or occasional reporting may be arranged with the client.

Withholding Information

[7] In some circumstances, a lawyer may be justified in delaying transmission of information when the client would be likely to react imprudently to an immediate communication. Thus, a lawyer might withhold a psychiatric diagnosis of a client when the examining psychiatrist indicates that disclosure would harm the client. A lawyer may not withhold information to serve the lawyer’s own interest or convenience or the interests or convenience of another person. Rules or court orders governing litigation may provide that information supplied to a lawyer may not be disclosed to the client. Rule 3.4(c) directs compliance with such rules or orders.

Annotations

Generally

The Louisiana Supreme Court has held that “[p]roper communication with clients is essential to maintain public confidence in the profession.” See La. State Bar Ass’n v. St. Romain, 560 So. 2d 820, 824 (La. 1990). Indeed, the duty to communicate is so fundamental that a lawyer cannot delegate this responsibility to lay employees. Id. (citing La. State Bar Ass’n v. Edwins, 540 So. 2d 294 (La. 1989)). The failure to communicate is one of the most common complaints made about lawyers.[1] Furthermore, in many cases the failure to communicate is the principal reason why clients initially file complaints with the Office of Disciplinary Counsel.

Information that Lawyers Must Communicate to Clients

A lawyer must communicate to all existing and potential clients that the lawyer has been suspended from the practice of law. See In re Turnage, 104 So. 3d 397, 398 (La. 2012); In re Castro, 737 So. 2d 701 (La. 1999). Moreover, a lawyer must inform the client when the client’s case has been dismissed, see In re Newman, 83 So. 3d 1018, 1020 (La. 2012); In re Elbert, 698 So. 2d 949 (La. 1997), or has prescribed before the lawyer filed suit, see In re Bruscato, 743 So. 2d 645, 647-48 (La. 1999); In re Dixon, 650 So. 2d 740 (La. 1995). In addition, a lawyer must communicate all settlement or plea offers to the client, even if the lawyer personally believes that the offer is undesirable, unless “prior discussions with the client have left it clear that the proposal will be unacceptable.” See Model Rules of Professional Conduct Rule 1.4 cmt. 1; see also In re Ruth, 90 So. 3d 1004, 1013 (La. 2012); In re Elbert, 698 So. 2d 949 (La. 1997); La. State Bar Ass’n v. St. Romain, 560 So. 2d 820 (La. 1990) (publicly reprimanding a lawyer failing to consult with clients about terms of proposed settlements). Finally, and perhaps obviously, a lawyer must return his client’s telephone calls. See, e.g., Ruth, 90 So. 3d at 1012, 1014; In re Williams, 947 So. 2d 710, 713-714 (La. 2007); In re Sumpter, 931 So. 2d 347 (La. 2006); In re Donnan, 838 So. 2d 715, 721 (La. 2003).

Communicating with Impaired Clients

The scope of a lawyer’s responsibilities and authority when dealing with an impaired client is one of the most vexing issues in professional-responsibility law. Nevertheless, a lawyer should err on the side of providing more rather than less information to a potentially impaired client, unless compelling circumstances suggest otherwise. See Model Rules of Professional Conduct Rule 1.4 cmt.7 (permitting a lawyer to withhold information if providing the information would cause harm to the client). A lawyer representing a potentially impaired client should carefully consider Rule 1.14. See La. Rules of Professional Conduct Rule 1.14 (2004) (client under disability).

Criminal Practice

Defense counsel should keep the client informed regarding the status and progress of the case, and promptly respond to reasonable requests for information. See ABA Stds. Relating to the Admin. of Crim. Justice–The Def. Function std. 4-3.8. Furthermore, defense counsel must provide the client with all information reasonably necessary for the client to make informed decisions regarding the matter. Id. A lawyer who fails to “clearly and unambiguously”communicate the effects and limitations of a guilty plea violates this rule. See In re Frank, 942 So. 2d 1050 (La. 2006); In re Lafont, 898 So. 2d 339, 348 (La. 2005). This principle also extends to the appeals process, see In re Hall, 69 So. 3d 417, 419-20 (La. 2011) (holding that a lawyer violated Rule 1.4 when the lawyer did not consult with the client about the client’s understanding regarding their appeal strategy of a guilty plea entered into by the client).

Disciplinary Sanctions

The failure of a lawyer to communicate with clients is the triggering cause of a large number of complaints to the Office of Disciplinary Counsel. That is, clients often report a lawyer to disciplinary counsel because the lawyer’s failure to respond to telephone calls and other reasonable requests for information has resulted in a loss of trust and confidence. Such complaints, because they often are indicative of more serious misconduct, routinely lead to further investigation by disciplinary counsel, and often to formal charges alleging violations of this rule and others. See, e.g., In re Landry, 728 So. 2d 833 (La. 1999) (disciplining a lawyer for failure to communicate and other infractions); In re Bivins, 724 So. 2d 198 (La. 1998) (same); In re Broussard, 26 So.3d 131 (La. 2010). In In re Lawrence, the Louisiana Supreme Court was “particularly disturbed by the testimony of several clients…who testified that they were forced to call respondent from different telephone numbers in order to get him to answer their calls;” the lawyer was subsequently suspended from practice for eighteen months. In re Lawrence, 954 So.2d 113 (La. 2007). The Louisiana Supreme Court has held that in “cases involving multiple instances of neglect, failure to communicate with clients, and failure to cooperate with ODC,” disbarment is often warranted. In re Williams, 947 So. 2d 710, 714 (La. 2007) (citing In re Brancato, 932 So. 2d 651 (La. 2006)); see also In re Barrio, 108 So. 3d 742, 746 (La. 2013).

The ABA Standards for Imposing Lawyer Sanctions treat violations of Rule 1.4 in a manner similar to violations of Rule 1.3 (diligence). See ABA Stds. for Imposing Lawyer Sanctions std. 4.4; id. app. 1 (1992) (cross referencing Model Rule 1.4 with Standard 4.4).

Notes

This page was updated on July 25, 2013.

 

 



[1] Disciplinary actions charging violations of Rule 1.4 often include charges that the respondent violated Rule 1.3 (diligence) as well. See, e.g., In re Bradley, 917 So. 2d 1068 (La. 2005); In re Karam, 852 So. 2d 979 (La. 2003); In re Phelps, 827 So. 2d 1140 (La. 2002); In re Taylor, 802 So. 2d 1287 (La. 2002).