Limits on the Duty to Communicate

Rule 1.4 speaks in commands. Subsection (a) begins “A lawyer shall” and lists the lawyer’s duties, and subsection (b) requires the lawyer to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”¹ The flexibility the text does offer lies in its reasonableness standards, which adjust how much the lawyer says and how quickly. They do not excuse the lawyer from giving the client what a decision requires. Disclosure is therefore the default, and any departure needs a justification that does not come from the lawyer’s own preferences.

The exceptions stay narrow because a lawyer who withholds information decides, in effect, what the client may decide with. The commentary warns against that posture: a lawyer may only rarely adopt the paternalistic stance of concealing information as supposedly in the client’s best interest.² If the lawyer could hold back whatever she thought the client better off not knowing, she would judge for herself when the exception applied, and she would do so with her own interests in the outcome. Bad news is unpleasant to deliver, an angry client is hard to face, and a lawyer allowed to withhold for the client’s benefit can easily persuade herself that sparing the client and sparing herself are the same thing.

Two limits survive that skepticism. The first rests on the client’s own situation: in rare circumstances the timing of a communication so affects the client’s welfare that the lawyer may postpone it. The second comes from outside the relationship: a court order forbids the lawyer to share certain information with the client, and the lawyer must obey. On an exam, start from the presumption that the client gets the information, then ask whether the facts fit one of these two limits. The lawyer’s convenience, embarrassment, or fear of the client’s anger fits neither.

Delay to Protect the Client

The one allowance for postponement appears in Comment 7, which says a lawyer may be justified in delaying transmission of information “when the client would be likely to react imprudently to an immediate communication.”³ The comment adds that a lawyer might withhold information when the client would be harmed by hearing it. Its example is a psychiatric diagnosis of the client when the examining psychiatrist indicates that disclosure would harm the client.⁴ The Restatement of the Law Governing Lawyers draws the same line. A psychiatric report might be withheld if “serious harm” to the client might result, but withholding is proper only under “conditions of extreme necessity.”⁵ Everything in this allowance rests on the client’s own situation.

The allowance fits the Rule because the duty to communicate exists for the client’s benefit. Information goes to the client so that she can understand the matter and decide what to do. Usually the fastest delivery serves that goal best, but occasionally the timing defeats it, as when news would provoke a reaction so damaging that the client ends up less able to decide anything. In the psychiatric example, the judgment of harm belongs to a professional who has examined the client. The lawyer’s decision to wait therefore rests on an expert assessment and not on a private guess about how the client will cope.

Justified withholding is rare, and the reason is structural. A power to hold back whatever the lawyer judged the client unready to hear would swallow the duty it modifies. The circumstances that justify hiding anything from a client are so unusual that the reference to them in the last comment to Rule 1.4 has been described as one that “might be misunderstood and perhaps would be better left unsaid.”⁶ An exam answer should treat the allowance as an exception that needs concrete facts showing likely, serious harm to the client.

The safest way to apply the allowance is to treat it as a postponement. A lawyer who holds a diagnosis for two weeks while arranging for the psychiatrist to attend the conversation still intends to tell the client, and the information arrives in a form and at a time that protects her. A lawyer who withholds the same information indefinitely has stopped postponing and started deciding for the client. Once the harm that justified waiting has passed or can be managed, the reason for silence is gone and the duty to communicate returns in full. Where the information bears on a decision requiring the client’s informed consent, the duty to inform the client promptly of that decision keeps any delay short, because a wait that outlasts the client’s chance to choose has taken the choice away.⁷

The question an exam stem usually poses is whose interest the silence serves, because the same stretch of quiet can be defensible or a violation depending on the answer.

The two scenes involve similar stretches of silence, and what separates them is the person the silence protects. In the first, the wait is tied to the client’s welfare and ends in a planned conversation. In the second, the wait is tied to the lawyer’s discomfort and ends only when the lawyer feels ready. The same test excludes every other beneficiary. A lawyer who stays silent because a fee-paying relative or an insurer would prefer it serves someone other than the client, and nothing in the comment reaches that case. A lawyer’s wish to avoid a malpractice claim is the plainest self-interested motive of all, and the next section returns to it when it takes up the lawyer’s disclosure of her own errors.

The allowance also requires more than a client who will be unhappy. Disappointment, anger, and worry are the ordinary price of bad news, and a lawyer who treated them as grounds for silence would withhold nearly every unwelcome development. The comment looks instead to a likely imprudent reaction or to real harm, which is why the psychiatric report is its paradigm.⁹

Court Orders and Legal Prohibitions

The second limit comes from outside the lawyer-client relationship. When a court order expressly precludes disclosure to a client, as a protective order in civil litigation may do by restricting access to certain information to counsel only, the lawyer must abide by that decree.¹¹ Here the lawyer’s silence follows from a command she cannot disregard, and it says nothing about how the client would react to the news.

The reason is that a lawyer cannot obey two commands that point in opposite directions, and only one of them comes from a body with power to enforce it against her. A protective order lets sensitive material, such as a competitor’s pricing records or a company’s technical data, change hands in discovery while its circulation stays limited to the people the court has named. If counsel could pass that material to the client whenever the client asked, the restriction would fail in the setting it was written for. The duty to the client therefore yields, but only in the respect the order covers. The order outranks Rule 1.4 on that item of information and on nothing more.

Because the exception reaches only what the order forbids, the rest of the Rule keeps running. The order in that scene says nothing about the posture of the case, so the duty to keep the client reasonably informed about the status of the matter still requires the lawyer to report developments, including the settlement offer.¹² Anything that calls for the client’s informed consent must still be raised promptly unless the order itself reaches it.¹³ The duty to explain adjusts in the same way. A lawyer working under an order should explain the matter as fully as the order allows, so that the client can still make informed decisions.¹⁴ The lawyer should also tell the client the one thing the order does not hide, which is that certain information exists and is being withheld under a court order. A client told nothing cannot tell a lawful restriction from neglect.

An exam stem often presents the opposite situation and dresses it in the language of a prohibition, so the useful question is where the demand for silence comes from.

The two scenes differ in the source of the silence: a decree the lawyer must obey in the first, and a request she may decline in the second. The same analysis applies to an insurer, a relative, a co-party, or the lawyer’s own wish to avoid an awkward conversation, since none of them is a court order or a rule of law. A request carries no legal force, so it cannot displace the “shall” in Rule 1.4(a).¹⁵