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Delaware Legal Ethics
1.4 Rule 1.4 Communication
1.4:100 Comparative Analysis of the Delaware Rule
Model Rule 1.4 is identical to DLRPC 1.4.
The Model Code does not have rules that deal directly with the duty to communicate, except DR 9-102(b)(1), which requires that a lawyer “promptly notify a client of the receipt of his funds, securities or other properties.” There are ethical considerations listed in the Model Code that deal with this duty, such as EC 7-8 which corresponds to DLRPC 1.4(b) and states that “a lawyer should exert his best efforts to insure that decisions of his client are made only after the client has been informed of relevant considerations.” The other ethical consideration, EC 9-2, corresponds to DLRCP 1.4(a)(3) and requires that a lawyer “fully and promptly inform his client of material developments in the matters being handled for the client.”
1.4:200 Duty to Communicate with Client
A lawyer has a general duty to communicate with the client. DLRPC 1.4. This duty includes the duty to communicate anything that requires the client’s “informed consent”, DLRPC 1.4(a)(1), the duty to “keep the client reasonably informed about the status of the matter,” DLRPC 1.4(a)(3), and the duty to “promptly comply with reasonable requests for information” from the client, DLRPC 1.4(a)(4). Comment 1 of DLRPC 1.4 points out that communication between the attorney and the client is essential for the client to be able to “effectively participate in the representation.” This duty of communication is not affected by whether the client is a fee paying client. Board Case No. 10 (June 21, 1990).
However, Comment 7 of DLRPC 1.4 recognizes that there are some limited circumstances where a lawyer may wait to inform the client about certain information. This situation arises when informing the client is likely to cause the client to “react imprudently,” with the Commentary using the result of a psychiatric examination as an example. Comment . If a psychiatrist advises that it is not wise to inform the patient of certain information, the lawyer may withhold this information for a certain period of time. However, this delay in giving information cannot be for the lawyer’s personal interest. Comment .
Duty to Keep Client Informed
Comment 3 of DLRPC 1.4 imposes a duty on the lawyer to keep the client informed of “significant developments affecting the timing or the substance of the representation.” An attorney has the duty to inform the client about changes in the status of the case, such as a dismissal of an appeal. E.g, In Re Carmine, 559 A.2d 248, 250 (Del. 1989) reinstatement granted by 599 A.2d 412 (Del. 1991). In In Re Carmine, the attorney violated DLRPC 1.4(a) by not telling the client that an appeal had been dismissed. Id. In another case an attorney was disciplined for violating DLRPC 1.4(a) for failing to inform the client that default judgment had been entered against him. In Re Cordrey, 707 A.2d 765 (Del. 1998) (Table) No. 517, 1998 Del. WL 138924 at *2. Similarly, an attorney was disciplined for violating DLRPC 1.4(a) for failing to tell the client that summary judgment had been granted against him. Board Case No. 37 (Nov. 19, 2003). Another lawyer violated DLRPC 1.4(a) when the lawyer did not tell the client that a “no-fault” lawsuit was dismissed. In Re Becker, Board Case No. 31, 2000, aff’d by 788 A.2d 527 (Del. 2001) (Table), No. 235, Del. WL 1750997 (Jul. 31, 2001).
An attorney has a duty to communicate the resolution of a matter to a client. E.g., In Re Hess, Board Case No. 20, 2002, aff’d by 804 A.2d 1066 (Del. 2002) (Table), No. 369, 2002 Del. WL 1814043 (Jul. 24, 2002). A lawyer violated DLRPC 1.4(a) by not telling the client how the client’s medical bills were handled in the settlement of the case. Id. Similarly, an attorney was disciplined for a violation of DLRPC 1.4(a) when the attorney failed to give the client information relating to child support obligations, a matter about which the client did not know until the support was taken out of his pay. In Re McCann, No. 17 (Del. 1991).
If the lawyer neglects a duty which results in a penalty to the client, the lawyer has the duty to communicate this neglect and the result to the client. E.g, Board Case No. 16 (Del. 1994). A lawyer received a private reprimand for violating DLRPC 1.4(a) when the lawyer incorrectly calculated the assets in an estate and never disclosed this fact to the client. Id. A lawyer violated DLRPC 1.4(a) when the lawyer missed the statute of limitations and did not tell the client. In Re Cordrey, 714 A.2d 16 (Del. 1999) (Table) No. 257, 1999 Del. WL 652065 (Jul. 29, 1999) at *1. An attorney received a private reprimand for not informing the client of the outcome of the case and not sending the client a copy of the opinion. Board Case No. 10, 1990 (June 21, 1990).
Duty to Respond to the Client’s Reasonable Requests for Information
Comment 4 of DLRPC 1.4 imposes a duty on lawyers to “promptly” return the client’s phone calls. Failure to do this subjects a lawyer to discipline. E.g., In Re Hiner, Board Case No. 54 (2002) aff’d by 813 A.2d 1140 (Del. 2002) (Table) No. 566, 2002 Del. WL 31856401 (Dec. 20, 2002). An attorney violated DLRPC 1.4(a) when the client called the attorney five times in one week and the attorney did not return any of the phone calls. Id. The client received phone calls from the secretary but not the lawyer. Id. Another lawyer was disciplined for violating DLRPC 1.4(a) when the lawyer never told the client that the lawyer was withdrawing from the representation, not having returned the client’s phone calls for months. Board Case No. 35, 2001 (Oct. 12, 2001). An attorney violated DLRPC 1.4(a) in not returning the client’s phone calls, letters or faxes which requested information about a bankruptcy matter. In Re Becker, Board Case No. 31, 2000, aff’d by 788 A.2d 527 (Del. 2001) (Table), No. 235, Del. WL 1750997 (Jul. 31, 2001). In another bankruptcy case, the lawyer who represented the creditor did not respond to the creditor’s phone calls and letters, who was trying to determine the status of the case. In Re Benge, 754 A.2d 871, 877 (Del. 2000). As a result, the client mistakenly believed that the case was dismissed and unlawfully repossessed the debtor’s car, which resulted in a complaint being filed against the client and sanctions being imposed. Id. In another case the lawyer failed to respond to the client’s phone calls when he was unable to renew his driver’s license, an event occasioned because the lawyer had not resolved the case. In Re McCoy, Board Case No. 71, 1997, aff’d by 698 A.2d 409 (Del. 1997) (Table), No. 260 Del. WL 425500 (Jul. 21, 1997). A lawyer violated DLRPC 1.4(a) when the lawyer did not respond to the client’s inquiries regarding tax bills. In Re Autman, Board Case No. 39, 1999, aff’d by 750 A.2d 530 (Del. 2000) (Table) No. 101 Del. WL 431543 (Mar. 29, 2000).
For some attorneys, there is a pattern of poor communication with clients which results in discipline under DLRPC 1.4(a). E.g, Board Case No. 10 and 19 (June 29, 1995). An attorney was privately reprimanded for repeatedly failing to return phone calls of two clients in two different matters. Id. Another lawyer was privately reprimanded for not returning the phone calls of clients requesting information in a custody case and a bankruptcy case, respectively. Board Case Nos. 37 & 45, 1994 (Dec. 19, 1994). One lawyer was disciplined for a pattern of not retuning phone calls when the attorney did not call the client back in response to requests for fee information. In Re Rodriguez, Board Case Nos. 31, 3, 65, (1998) aff’d by 793 A.2d 310 (Del. 2002) (Table), Nos. 186 and 386 Del. WL 4332019 (Mar. 14, 2002). The attorney failed to give the client an itemized bill as requested, and in an unrelated case, the attorney did not return the client’s phone calls to discuss “court ordered counseling.” Id. A lawyer violated DLRPC 1.4(a) by not returning the client’s phone calls in a bankruptcy case, and by agreeing to refer a medical malpractice client to another lawyer when not returning the client’s phone calls regarding the status of this referral. In Re Hull, 767 A.2d 197, 198-199 (Del. 2001).
When a client discharges a lawyer, the lawyer has the duty to respond to requests for documents and information from the new lawyer in the case. In Re Hiner, Board Case No. 34 (2002) aff’d by 813 A.2d 1140 (Del. 2002) (Table) No. 566, 2002 Del. WL 31856401 (Dec. 20, 2002). A lawyer was in violation of DLRPC 1.4(a) when the lawyer did not give the case files to the new counsel and did not respond to the new counsel’s requests for information. Id. A lawyer received a private reprimand for violating 1.4(a) when the client discharged the lawyer and the lawyer never responded to the client’s request for the case file. Board Case No. 2, 1990 (Apr. 17, 1991). A lawyer was in violation of DLRPC 1.4(a) for delay in surrendering case files when the client’s new attorney requested them; the files were not returned until the lawyer was contacted by the Office of Disciplinary Counsel. In Re Tos, 576 A.2d 607, 614 (Del. 1990).
An attorney was not found to be in violation of DLRPC 1.4(a) when the attorney represented a criminal defendant and did not respond to requests for information from the client’s family. In Re Guy, 756 A.2d 875, 880 (Del. 2000) reinstatement granted by 788 A.2d 516 (Del. 2002). This suggests that an attorney may not have a duty to keep the family informed, however, there was little evidence in this case which may be the reason that the lawyer was not found to be in violation of the rule. Id. In an estate matter, an attorney does have the duty to keep the family members informed. In Re Becker, Board Case No. 32, 2000, aff’d by 788 A.2d 527 (Del. 2001) (Table), No. 235, Del. WL 1750997 (Jul. 31, 2001).
1.4:300 Duty to Consult with Client
DLRPC 1.4(a)(2) imposes a duty to “reasonably consult with the client about the means by which the client’s objectives are to be accomplished.” Comment 3 of DLRPC 1.4 further explains this duty saying that in some circumstances this consultation is necessary in order for the lawyer to take action in a case. This is distinguished from a situation where the lawyer must make a quick decision without consulting the client, such as in trial. Comment .
The lawyer has the duty to “explain a matter to the client reasonably necessary to permit the client to make informed decisions regarding the representation.” DLRPC 1.4(b). Comment 5 discusses this duty to “explain,” saying that “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…” Comment 5 indicates that the extent of the duty to explain depends on the circumstances, such as the nature of the case and the time to explain. It further states that “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 regarding the character of representation.” Comment .
In McDonald v. State, the criminal defendant was denied effective assistance of counsel when the lawyer did not communicate the extent of the plea offer to the defendant. McDonald v. State, 778 A.2d 1064, 1075 (Del. 2001). The court said that the lawyer had the duty to fully consult with the client about the plea bargain and explain the terms and conditions after a full investigation of the offer. Id at 1072. An attorney violated DLRPC 1.4(b) when the attorney did not explain the matter to the client so as to permit the client to make informed decisions about whether to file an appeal to the denial of his petition for habeas corpus. Board Case No. 32, 1999 (Sept. 27, 1999). The lawyer never told the client that the motion had been filed “out of time,” that in his opinion the motion was frivolous, and the lawyer never communicated to the client that he no longer wanted to represent him. Id. In a similar situation, a lawyer violated DLRPC 1.4(b) by not explaining the client’s rights to appeal because he believed that the appeal would not be successful. Board Case Nos. 44 & 45, 1997 (Nov. 25, 1997). A lawyer received a private reprimand for violating DLRPC 1.4(b) for not explaining the client’s options regarding the summary judgment motion filed by opposing counsel, or the possibility of an appeal of that motion after it was granted. Board Case No. 37, 2003 (Nov. 19, 2003). A lawyer violated DLRPC 1.4(b) by not explaining to the client that the lawyer could no longer represent the client in trial, that another lawyer would be representing the client, resulting in the client being unable to decide on a course of action. Board Case No. 8, 1988 (Aug. 24, 1988).
In Simmons v. Del. State Hospital, the court stated that the lawyer has a duty to explain a statute to the client in order to explain the nature of settlement proposals under that particular statute. Simmons v. Del. State Hospital, 660 A.2d 384, 391 (Del. 1995).
The lawyer also has the duty under DLRPC 1.4(a)(5) to consult with the client regarding a situation where the client requests the lawyer’s assistance and that assistance is contrary to the law or the DLRPC.
Comment 6 of DLRPC 1.4 recognizes that in situations where a client has a “diminished capacity,” it may not be practical to fulfill this duty to explain in the same way. The court in Hill v. Hill determined that since the client was taking lithium and was arguing that she was not mentally competent, the lawyer’s review of the terms of the agreement, along with authority from the client to proceed, was sufficient communication in this case. Hill v. Hill, 1989 Del. Fam. Ct. WL 22574 (Jan. 24, 1989) at *6-7.
Comment 6 of DLRPC 1.4 also points out that when a lawyer represents an organization, this duty to communicate can be discharged by communicating with the officials of the organization. This commentary recognizes that when a lawyer is regularly handling routine tasks for a client, a system of periodic communication can be established. Comment 6.
1.4:400 Duty to Inform the Client of Settlement Offers
See 1.2:320 under the subsection titled, Client’s Decisions in the Settlement of Civil Matters. The court in TransWorld Airlines v. Summa Corp. said that the lawyer does not have the authority to settle a case without the client’s consent. 394 A.2d 241, 244 (Del. 1978). Therefore, inherent in the consent requirement is a duty to inform the client of a settlement offer. See, In Re Wolhar, Board Case No. 21, 1992 aff’d by 670 A.2d 1341 (Del. 1995) (Table) No. 337 Del. WL 622533 (Oct, 16, 1995). An attorney was disciplined for violating DLRPC 1.4(a) when the lawyer did not adequately explain a settlement offer to the client. Id.