Mediation Message No. 148


Rule of Professional Conduct 1.4 (effective November 1, 2018), which replaces former rule 3-500, maintains the requirement that lawyers must keep clients reasonably informed about significant developments and promptly comply with reasonable requests for both information and significant documents. The new rule adds that the lawyer shall promptly inform the client of any decision or circumstance with respect to which disclosure or the client’s informed consent is required; shall reasonably consult with the client about accomplishing the client’s objectives and shall advise the client of relevant limitations on the lawyer’s conduct. An interesting new exception to the communication obligation is that lawyers may delay transmission of the above information where it is likely to cause imminent harm to the client or others.

MDM’s observations: Consider providing clients with too much documentation and memorializing all communications with clients.  Provide the client with too much documentation – Clients want to know and should know what is going on with their matters and are more likely to be satisfied with their lawyers’ representations when fully informed. Thus, give them, at a minimum, all correspondence to and from opposing attorneys and parties; all moving papers and pleadings and all notices and orders from the applicable tribunal. (Because work-product is a gray area [the comment to rule 1.4 states that “the obligation of the lawyer to provide work product to the client shall be governed by relevant statutory and decisional law.”], whether to give it to a client is the decision of the attorney for that client.) Memorialize all communications – It is not uncommon in the practice of law that a difference of opinion may arise between a lawyer and the lawyer’s client. And, because cynics have taken the position that “if it’s not in writing, it didn’t happen” (see, for example, that the absence of documentation in employment litigation has drawn negative inferences [McGinest v. GTE Service Corp. (9th Cir. 2004) 360 F.3d 1103, 1123; Melendez-Arroyo v. Cutler-Hammer De P.R. Co, Inc. (1st Cir. 2001) 273 F.3d 30, 34 and Dunn v. Nordstrom (7th Cir. 2001) 260 F.3d 778, 785-786]), it is preferable and more effective to reduce to writing all attorney-client controversies. Further, because the accuracy of memoranda to oneself can be disputed, it is better to use contemporaneous letters, emails and even texts to reflect significant conversations and events in the attorney-client relationship. A memorandum, however, is preferable when the attorney is memorializing circumstances to himself or herself that cannot be communicated to the client, such as deciding not to divulge a fact to the client that may cause imminent harm to that client or a third person.

Judge Michael D. Marcus (Ret.)
ADR Services, Inc.
1900 Avenue of the Stars, Suite 250
Los Angeles, California 90067

(310) 201-0010

Copyright Michael D. Marcus, March 2018

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