Alaska R. Prof. Conduct 1.4

History

(SCO 1123 effective July 15, 1993; amended by SCO 1329 effective January 15, 1999; by SCO 1370 effective April 15, 2000; rescinded and repromulgated by SCO 1680 effective April 15, 2009) ALASKA COMMENT Paragraph (a) is a combination of paragraphs (a) and (b) from the former rule. Paragraph (b) is from the American Bar Association COMMENT. Lawyers may use the following language in making the disclosures required by this rule: (1) no insurance: “Alaska Rule of Professional Conduct 1.4(c) requires that you, as the client, be informed in writing if a lawyer does not have malpractice insurance of at least $100,000 per claim and $300,000 annual aggregate and if, at any time, a lawyer’s malpractice insurance drops below these amounts or a lawyer’s malpractice insurance coverage is terminated. You are therefore advised that (name of attorney or firm) does not have malpractice insurance coverage of at least $100,000 per claim and $300,000 annual aggregate.” (2) insurance below amounts: “Alaska Rule of Professional Conduct 1.4(c) requires that you, as the client, be informed in writing if a lawyer does not have malpractice insurance of at least $100,000 per claim and $300,000 annual aggregate and if, at any time, a lawyer’s malpractice insurance drops below these amounts or a lawyer’s malpractice insurance coverage is terminated. You are therefore advised that (name of attorney or firm)’s malpractice insurance has dropped below at least $100,000 per claim and $300,000 annual aggregate.” (3) insurance terminated: “Alaska Rule of Professional Conduct 1.4(c) requires that you, as the client, be informed in writing if a lawyer does not have malpractice insurance of at least $100,000 per claim and $300,000 annual aggregate and if, at any time, a lawyer’s malpractice insurance drops below these amounts or a lawyer’s malpractice insurance coverage is terminated. You are therefore advised that (name of attorney or firm)’s malpractice insurance has been terminated.” COMMENT Reasonable communication between the lawyer and the client is necessary for the client effectively to participate in the representation. Communicating with Client If these Rules require that a particular decision about the representation be made by the client, paragraph (b) requires that the lawyer promptly consult with and secure the client’s consent prior to taking binding action unless prior discussions with the client have resolved what action the client wants the lawyer to take. For example, a lawyer who receives from opposing counsel an offer of settlement in a civil controversy or a proffered plea bargain in a criminal case must promptly inform the client of its substance unless the client has previously indicated that the proposal will be acceptable or unacceptable or has authorized the lawyer to accept or to reject the offer. See Rule 1.2(a). Paragraph (a) requires the lawyer to reasonably consult with the client about the means to be used to accomplish the client’s objectives. In some situations – depending on both the importance of the action under consideration and the feasibility of consulting with the client – this duty will require consultation prior to taking action. In other circumstances, such as during a trial when an immediate decision must be made, the exigency of the situation may require the lawyer to act without prior consultation. In such cases the lawyer must nonetheless act reasonably to inform the client of actions the lawyer has taken on the client’s behalf. Additionally, paragraph (a) requires that the lawyer keep the client reasonably informed about the status of the matter, such as significant developments affecting the timing or the substance of the representation. A lawyer’s regular communication with clients will minimize the occasions on which a client will need to request information concerning the representation. When a client makes a reasonable request for information, however, paragraph (a) requires prompt compliance with the request. If a prompt response is not feasible, the lawyer or a member of the lawyer’s staff should acknowledge receipt of the request and advise the client when a response may be expected. Explaining Matters 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, to the extent the client is willing and able to do so. Adequacy of communication depends in part on the kind of advice or assistance that is involved. For example, when there is time to explain a proposal made in a negotiation, the lawyer should review all important provisions with the client before proceeding to an agreement. In litigation a lawyer should explain the general strategy and prospects of success and ordinarily should consult the client on tactics that are likely to result in significant expense or to injure or coerce others. On the other hand, a lawyer ordinarily will not be expected to describe trial or negotiation strategy in detail. 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 as to the character of representation. In certain circumstances, such as when a lawyer asks a client to consent to a representation potentially affected by a conflict of interest, the client must give informed consent, as defined in Rule 9.1(g). Ordinarily, the information to be provided is that appropriate for a client who is a comprehending and responsible adult. However, fully informing the client according to this standard may be impracticable, for example, where the client is a child or suffers from impaired capacity. See Rule 1.14. When the client is an organization or group, it is often impossible or inappropriate to inform every one of its members about its legal affairs; ordinarily, the lawyer should address communications to the appropriate officials of the organization. See Rule 1.13. Where many routine matters are involved, a system of limited or occasional reporting may be arranged with the client. Withholding Information 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 psychiatrist indicates that 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. Rule 3.4(c) directs compliance with such rules or orders.