Ethics Counsel on www.OKbar.org

Communication Obligations to Clients

By Gina Hendryx, OBA Ethics Counsel

Communicate with your clients! It is an adage that is stressed at every legal practice seminar and risk management conference. However, simply returning clients’ phone calls and sending out monthly case update letters will not buffer you from all potential problems that can arise from poor communication when determining the scope and objectives of the representation.

For example, you have agreed to negotiate a fire loss with your client’s insurance carrier. The parties are far apart, and the statute of limitations is looming next week. You did not agree to file suit, but the client understood otherwise. Are you obligated to file the case?

Or, you tried a case for a client on a flat fee agreement. The other side has filed an appeal and your client’s response time is nearing. Your client believes that he has paid for the “whole case” and your intent was for the fee to cover the matter “through trial.” Must you undertake the appeal without further remuneration?

Oklahoma Rules of Professional Conduct (ORPC) 1.2 states, “A lawyer shall abide by a client’s decisions concerning the objectives of representation...” The rule recognizes that “(b) A lawyer may limit the objectives of the representation if the client consents after consultation.” The ABA Model Rule on Scope of Representation encourages the lawyer to confirm in writing the objectives of the representation as well as any limitations agreed to by the lawyer and client. Several states require such a disclosure to be in writing, however, Oklahoma does not.

The practitioner should consider including the objectives of the representation in an engagement letter or in the written fee agreement. The initial meeting between lawyer and client should establish the scope of the representation, time lines, probable outcomes and fees. This agreement should be memorialized in a letter or within the fee agreement and should be signed by both lawyer and client. The written document should specify what the representation will entail. Just as important, it should specify what the representation will NOT cover.

Although the lawyer and client may limit the scope of the representation, the limitation must be reasonable under the circumstances and does not exempt the lawyer from the duty to provide competent representation. “Fifteen minutes for fifteen dollars!” may be a catchy advertising slogan but an unreasonable limitation if it is not sufficient to yield advice upon which the client may rely on a technical area of law.

Oklahoma and the majority of jurisdictions agree that the lawyer must abide by a client’s decision whether to accept an offer of settlement in a matter. Accordingly, a lawyer shall have the client’s specific authorization to enter into a settlement agreement on the client’s behalf. Whether a lawyer has such authority is generally a matter of state substantive law. By reducing such authority to writing will protect the attorney in client challenges to the enforceability of the settlement agreement. In criminal cases, it is the client’s decision, after consultation with the lawyer, as to the plea to be entered, whether to waive a jury trial, and whether the client will testify. ORPC 1.2(a).

Determining the objectives of the representation should not be confused with “ghost writing” or preparing pro se pleadings for clients. These practices have been exhaustively debated within the Ethics Committee of the OBA and before the OBA Board of Governors. Practitioners should review 5 Okla. Stats. §5 for guidance before contracting to provide such services.

Have an ethics question? It’s a member benefit, and all inquiries are confidential. Contact Ms. Hendryx at ginah@okbar.org or (405) 416-7083; (800) 522-8065.

Originally published in the Oklahoma Bar Journal -- Sep.3, 2005 -- Vol. 76; No.24