This article is intended to give some simple writing tips to make the method for writing declarations and legal correspondence more clear and concise for the reader, whether the Court or counsel is the intended recipient.
Rule of Professional Conduct 1.4, effective now for a year, has made explicit some duties never stated in former Rule 3-500.
By Michael Crowley
California attorneys are constantly reminded that the number one reason for complaints to the state bar about attorneys is the failure to respond to requests for information from clients. Why? Think about it.
Besides avoiding problems with the state bar by violating the California Rules of Professional Conduct, what does good communication do for you and your law practice?
We can’t control what the court will do. We can’t control what opposing counsel will do. We can’t control how events can change things. We can, however, control how often we pick up the phone to call a client or write an email. We can also strive to control how our staff interacts with our clients by making sure they are in the loop on the cases, including knowing deadlines and court appearances approaching.
Setting aside for the moment these considerations that likely just fall in the realm of good business practices (which by the way, failure to know good business practices is another high-on-the-list reasons for state bar complaints) what are the rules?
California Rules of Professional Conduct (CRPC) Rule 3-500 requires that we keep our clients “reasonably informed about significant developments relating to the employment or representation.” The rule goes on to state that this includes “promptly complying with reasonable requests for information and copies of significant documents when necessary . . .” (emphasis added).
Rule 3-510 requires the communication of settlement offers along with “all terms and conditions of any offer made to the client in a criminal matter; and all amounts, terms, and conditions of any written offer of settlement made to client in all other matters.” Again, the rules state this will be done “promptly.”
These communications must be made within the current rules. We all know that we must maintain our communications confidential. To drive this point home, both the Business and Professions Code 6068(e)(1) states we must “maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client,” and CRPC 3-100 restates it by referencing B&P §6068 and stating information can only be revealed with “informed consent of the client.”
In these days of hacking, cyber-thefts and malware we are responsible for taking reasonable steps toward preserving our client’s confidential communications. One step is discussing it with your client and placing it in your retainer agreement that your client’s emails are not always confidential. For example, the use of a company email when the company’s policies allow for their access to employees’ emails calls for your client to set up a separate email for you to communicate with the client confidentially.
We all have experienced pesky and annoying clients. But the rules don’t provide an exception as to those clients. Seldom does procrastination as to your communication make it any better. The rules require your “prompt” communications with your client, good business practices dictate it and avoidance of state bar problems make it an excellent practice. We should all endeavor to lower the lack of communication from the top reasons for state bar complaints.
Michael Crowley is the Founder and Lead Attorney of the Crowley Law Group.
This article was originally published in the SDCBA’s “Ethics in Brief” column series.
**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**
Mental illness, even severe mental illness is diverse. Otherwise sophisticated Supreme Court opinions have regularly promulgated a very one-dimensional view of mental illness — you have it or you don’t. Finally, in 2008, Justice Beyer astutely noted in Indiana v. Edwards: “Mental illness itself is not a unitary concept. It varies in degree. It can vary over time. It interferes with an individual’s functioning at different times in different ways.” The attorney’s ability to assess the severity of their client’s impairment is the most essential part of working with clients with mental health issues, along with rating the three issues of boundaries, trust and realistic communication.
Many forms of severe mental illness are characterized by denial and the construction of facades and personas to hide the realities. Something I have always found very helpful is to ask my patients to write a detailed autobiography for me. Writing taps into different brain storage than speech, so there is always new material and real data to work with. Make sure your client labels it as attorney client communication, especially if they are incarcerated. You need to know how accurate, distorted or dishonest your client’s narrative accounts may be. You want to anticipate how much extra effort you will have to put in to create some level of trust, whether that will even be possible, and how to create appropriate boundaries.
Improving communication with clients with mental illness greatly depends on the severity of the distortions of reality, and the degree to which your client has had communications that were not mainly centered on life’s basics for survival. Clients with less disabling mental illness often make inaccurate assumptions about the nature of their relationships. You can address those assumptions early on to set the boundaries and establish the tone for your work with them. It never hurts to be plain spoken, e.g., “I’ve rarely seen a client benefit from taking on the role of the victim. Try thinking about being lucky enough to have survived. In my experience that is a better way to live.” Talking about the obvious current stress the client is under can allow some pushing for better boundaries, honesty and openness by attributing the negatives to current stress. With more severe distortions and denial, talking about getting support from a professional may be the road to better communications. Competency questions arise with clients who can’t establish boundaries, who confuse trust with exploitation, or who cannot engage in basic communication.
Rather than trying to memorize the Diagnostic and Statistical Manual (DSM), some intuitive introspection and evaluation of data will go a long way in determining which clients have significant mental illness. With some clients, the realities are too obvious — incoherent speech about the secret agents, or the microchips, or their fifth DUI. But so many other forms of mental illness and emotional suffering are more subtle. Once you have the information underlying the legal action, the autobiography, your client’s early behavior with you, and your gut instincts, there is plenty of data to make a good assessment of whether there will be a predominance of honest, accurate communication, respect for boundaries, and mutual trust and respect.
You can then begin to set your agenda for which “red flags” you will try to deal with yourself and when the “red flags” will give you a sense that things will not resolve and that a mental health professional may be needed. It doesn’t have to involve an assessment of the client. A talk with a friend in mental health about what you experience with the client can help. Often the advice though is “let me take a look.” Preparation of your client will then be needed to make the process less threatening and intrusive. Every reason can be expressed as a measure of your concern. So even the client who calls 10 times a day to berate you for being lazy, is more likely to be less rejecting when you tell him that you have asked for a meeting with a mental health clinician, “because I am concerned that you are having such a difficult time trusting me. Maybe the doctor can give both of us suggestions how to do better.”
The specifics of all the varieties of mental disorders intersecting with all the varieties of legal cases can be overwhelming, but you are not responsible for either a diagnosis or cure. Fortunately, the bottom line isn’t that complex:
1. How do you rate the three basics with this client — boundaries, trust and realistic communications (i.e., not denial and delusion)?
2.Don’t ignore all the red flags.
3.Understand that mental illness is rarely under a person’s ability to change by individual will power or “making better choices.”
Overall, understanding that regardless of how the lawsuit is resolved, the client has a real need for effective treatment to have any chance at a better future.
Dr. Alan Abrams is an MD and JD. He has a private psychiatry practice and is a retained and court-appointed expert in criminal and civil matters.
Aleida K. Wahn is an attorney and award-winning true crime writer. You may contact her through her website at www.aleidalaw.com
This article was originally published in the Sep/Oct 2018 issue of
San Diego Lawyer
