Norm Pattis ()
Words like “reasonable” are what assure that lawyers will never lack for work. We can endlessly debate, litigate and then decide what “reasonable” means without ever coming to agreement. Hence, the never-ending flow of cases involving the Fourth Amendment’s prohibition against unreasonable searches and seizure.
A more mundane application of the term has great impact on the professional lives of lawyer. Rule 1.4 of the Rules of Professional Conduct requires reasonable communication with clients. We must “reasonably consult with” a client about the objectives of the cases we handle; we must keep clients “reasonably informed about the status of the matter;” we must “promptly comply with reasonable requests for information.”
In a bygone era, this reasonableness requirement was read through the prism of the so-called captain-of-the-ship model of lawyering. Lawyers navigated with clients as passengers. Just how we got the ships to port was largely a matter of our professional judgment and experience. All that was required was that we get the client to his or her destination as safely as circumstances permitted.
The law opted to move away from the captain-of-the-ship model and to follow medicine into the land of informed consent. Under this model, we consult clients not just about the destination, but also about the itinerary, accommodations and hazards of the route we propose they take. In other words, reasonable communication now requires far more engagement with the client about matters lawyers were never required to discuss a generation ago.
Times, tastes and the requirements of professional ethics change. I get that. But as with any legal standard, I wonder how we determine the outer limit of what is and is not required. Is there a limit to reasonable communications?
I ask because I find that I spend increasing amounts of time, as do the lawyers and the paralegals working for my firm, explaining the same things over and over again to individual clients. Because we are not public defenders and because we do not have institutional clients, it has become apparent that if we are to respond to all manner of questions, concerns and comments – and to do so repetitively – we need to charge more per case. In the gritty reality of small-firm life, time is money. If I am obliged to spend more time teaching my clients the law, then the clients need to pay more in fees.
There’s a troubling dynamic at work here. My license is on the line unless I spend increasing amounts of time explaining the law’s intricacies to the folks I represent. Many clients in trouble with the law have either cognitive or emotional issues that put them on the law’s radar in the first instance. In order to keep the doors to the firm open, I have to charge vulnerable people, people who typically don’t have much by way of financial resources, higher fees. Since most don’t have money for fees, that means we turn lots of people we could help away simply because they can’t afford us to do what the law requires us to do.
The real issue, of course, is just what is and is not reasonable. Most clients absorb what you try to teach quickly. Shock, anger and fear can be tamed in the overwhelming majority of cases.
But what about the cases in which you find yourself explaining the same thing over and over again? The day starts with an email. You respond. Then another email arrives. You call the client on the telephone to cut to the chase. The issue is defined and described. The call ends and you think you’ve done your job. Then comes another email, with a new question, a variation on a theme already beaten to death. Now the client wants a meeting.
At what point are you no longer obliged to respond?
It’s a difficult course to navigate. Not responding at all can put your license at risk. In the alternative, it can undermine the attorney-client relationship. Under no circumstances, I suppose, are you permitted to respond as follows: “I can explain this to you again, but I cannot understand it for you.”
Reasonable communications is not a self-defining term. I wish it were. The demands of this amorphous rule are sometimes crippling.
Norm Pattis is a criminal defense attorney and civil rights lawyer in Bethany. Most days he blogs att www.pattisblog.com.