The moment I fully grasped the extraordinary lengths to which a lawyer’s responsibility and authority extend will always stay with me. Allow me, if you will, to stage the scene:
I am a second-year associate sitting in a colleague’s office discussing a particularly contentious case. We discuss the client’s goals in the litigation and share ideas for our next steps to accomplish those goals. The conversation eventually leads to our expectations as to what steps our client will authorize, especially considering the particular opposing counsel and the tenor of the litigation. As the conversation winds down, this colleague says to me, “Paul, you have no idea how much authority you actually have.”
I presumed the comment was a thoughtful aside or, as was all the rage given my relative youth at the time, a friendly reminder to not look too far past my feet when walking. As the years passed, that comment stuck with me, and it is now a cornerstone of my practice. Our role is to advise and counsel: While authority to bind a client to a particular agreement lies with us as their lawyer, the actual authority to bind a client is derived from the clients themselves.
How far does that authority extend to delivering bad news, and how can you deliver bad news in the best way?
The analysis begins, as you may expect, with the Georgia Rules of Professional Conduct. Rule 3.3, “Candor Toward the Tribunal,” is well-known and often referenced, dictating that a lawyer “shall not knowingly” offer evidence they know to be false, fail to disclose material facts to the tribunal when such disclosure is necessary to avoid assisting a criminal or fraudulent act by the client, fail to disclose to the tribunal legal authority known to be directly adverse to your client’s position but not disclosed by opposing counsel, or make a false statement of material fact or law to the tribunal. Rule 1.0(aa) defines “tribunal” as “a court, an arbitrator in an arbitration proceeding, or a legislative body, administrative agency[,] or other body acting in an adjudicative capacity.” The obligations provided for by Rule 3.3 are further expanded by Comment (1), which states these obligations apply “when the lawyer is representing a client in an ancillary proceeding conducted pursuant to the tribunal’s adjudicative authority, such as a deposition.”
The duty of truthfulness ostensibly applies with equal force in communications with third-persons. Rule 4.1 provides that during the course of representation a lawyer shall not knowingly “(a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal act by a client, unless disclosure is prohibited by Rule 1.6 [‘Confidentiality of Information’].” Comment (1) tempers the rule by stating that a lawyer “generally has no affirmative duty to inform an opposing party of relevant facts.” While these rules and their respective comments are crystal clear in terms of a lawyer’s obligation toward the tribunal and to third persons, they offer no instruction as to the manner in which the obligation is fulfilled. Our discussion now turns to whether the obligations imposed by these rules exist with the same clarity toward our clients, specifically when you have adverse information to share, and, if so, whether there is a specific manner by which the lawyer fulfills that obligation.
I submit to you that the answer is “kinda.” Rule 1.4, entitled “Communication” provides in (a)(3) that lawyers shall “keep the client reasonably informed about the status of the matter.” Comment (3) expands the rule by stating that the phrase “reasonably informed about the status of the matter” encompasses “significant developments affecting the timing or the substance of the representation.” From a distance, this seems open-and-shut: If something happens, you are obligated to tell the client in a reasonable amount of time, given the particular circumstances. If only it were so simple, dear reader. Comment (7) to Rule 1.4 provides as follows in its entirety:
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 physiatrist indicates that the 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. (Emphasis added.)
The word “harm” or a derivative appears 22 times in the Georgia Rules of Professional Conduct in various ways, such as “harm or substantial financial loss” (once), “serious harm” (once), “death or substantial bodily harm” (once), “risk of substantial physical, financial, or other harm” (twice) and “imminent and irreparable harm” (twice). “Harm” itself is never defined as a noun, verb or otherwise.
While the obligation to communicate honestly toward the tribunal or the third party appears to require disclosure in a reasonable amount of time, the rules provide that a lawyer may temporarily withhold certain information if they believe their client may act imprudently, “imprudent” being defined by Merriam-Webster as “lacking discretion, wisdom or good judgment.”
The example presented in Comment (7) is interesting in its extremes. If we define “harm” as solely denoting physical consequences, the bar to temporarily withhold disclosure of bad news seems extraordinarily high. If we define “harm” as inclusive of mental, financial, emotional or other consequences, a lawyer’s knowledge or expectation that the bad news will put your client in so much as a bad mood seems to meet the standard. Further complications arise when reviewing Rule 2.1, entitled “Advisor,” which states in pertinent part a lawyer “should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client”, at risk of disbarment, and is further elaborated upon by Comment (1) which states that, when presenting advice, a lawyer “endeavors to sustain the client’s morale and may put advice in as acceptable a form as honesty permits.” We are then left with a structure whereby a lawyer must keep the client reasonably informed, even if the advice or transmission of information could be unpalatable to the client, could likely lead to a client’s imprudent reaction or lead to the client suffering unspecified harm, except that some circumstances may justify delaying the transmission of information that could lead to an imprudent reaction or suffering an unspecified harm. Got it?
As always, each situation is different, and lawyers must adapt to the facts of each case and make decisions with consideration of each case’s respective circumstances. The rules give significant latitude to the lawyer’s judgment in terms of the “when” and “how” information is relayed to the client, so long as it is eventually relayed. However, the varied uses and modifiers of “harm” ostensibly dictate different levels to which an anticipated, expected, or likely consequence may or must rise to obligate specified conduct. Until the rules provide for a standard, singular definition of “harm,” lawyers must be sure to consult the rules in any circumstance where a client is at risk of suffering that lawyer’s own subjective definition of “harm” due to a transmission of what may be considered bad news, which could lead to differing ethical standards among Georgia lawyers, contrary to the rules’ explicit purpose.
Paul S. Simon is a senior associate attorney with Hedgepeth Heredia in Atlanta, where he practices family law.