The Strategy of Client
Communication
Ethical Considerations
 The Texas Disciplinary Rules of
Professional Conduct are found in the
Texas Government Code (vol. 3A, 82.062
et seq.).
 All rules apply, but Rule 1.03(b) and
accompanying comments specifically
address communication between attorney
and client.
Rule 1.03 Requirements
 Under Rule 1.03 the attorney must:
– 1. keep the client reasonably informed about
the case status;
– 2. promptly respond to client’s reasonable
requests for information; and
– 3. provide client the amount of information
reasonably necessary to enable the client to
make informed decisions.
Who makes which decisions?
 Clients make strategic decisions, e.g.,
those the client must make to direct the
lawyer’s work like whether to file a lawsuit
or whether to settle and for how much.
 Lawyers make tactical decisions like those
concerning how to implement the lawyer’s
work, e.g., when to make a counter-offer
during negotiations.
Texas Disciplinary Rule 1.02
 TDR 1.02 requires the attorney, with
delineated exceptions, to abide by a client’s
decisions [regarding, inter alia] the
objectives and general methods of
representation.
Lawyers Biggest Mistake!!
 Note: In A Civil Action, Attorney
Schlichtmann admits, as a general matter,
that one of his mistakes was not integrating
his clients more into the decision making.
Texas Lawyer’s Creed
 Section II – Lawyer to Client: A lawyer
owes to a client allegiance, learning skill
and industry…
Who is the Client?
 In communicating with a client, keep in
mind who the client is –
– 1. If the client is not an individual, the lawyer
owes a professional allegiance to the entity
and not the individual representing the entity.
– 2. A client is not necessarily the person paying
the bill. For example, insurance companies
hire and pay lawyers to represent policy
holders. Beware of possible conflicts of
interest.
 No two clients are alike. Client needs
should be based upon the client’s
individual identity, experience, knowledge
and background.
What are the Client’s Views and
Expectations
 Evaluate the amount of responsibility you
have for your client and the amount of
responsibility you have to your client.
The Three Roles of the Lawyer
A. The Lawyer as Technician.
– Finds the law for client and helps client reach
immediate goals as efficiently as possible.
– The responsibility to the client is limited: once
the lawyer has finished the promised legal
work, the responsibility to the client ends.
– The responsibility for a client is also limited:
the lawyer is only responsible for completing
legal tasks competently and the client is
responsible for the results.
B. The Lawyer as Counselor.
 Responsibilities extend beyond competent
performance of particular legal tasks.
 Views a particular legal problem in the
context of all of the client’s legal problems.
 Assesses long range goals regardless of
whether the client is a “good guy” or “bad
guy.”
 Counselor is responsible for both the ends
and means of their clients.
 Accountable for what he helps clients
accomplish.
 Not permitted to excuse himself or his client
with the explanation that he was simply
doing what the law allows.
 Example: general counsel to an organized
crime unit.
C.The Lawyer as Problem
Solver
 Responsible for learning about concerns
and problems that motivate the client to
seek legal advice.
 Responsible for offering the client
potential solutions.
 Has greater responsibility for the client.
 Lawyer advises client of the legal and
ethical risks of seeking unjust ends.
 In extreme cases: if the lawyer feels
strongly that the client is seeking
something that is truly unjust, then the
lawyer should refuse to represent the
client.
 Lawyer matches options with client’s
goals.
 For example, if the client is interested in a
speedy resolution of a matter, litigation
probably is not a good option.
Assessing the Situation
 Lawyer identifies those problems that will
be the subject of the lawyer’s advice.
 Identifies other legal issues that may need
attention from some other lawyer – matters
outside the scope of the lawyer’s
professional competence.
 Recognizes other problems even when
there are not good legal solutions for those
problems – perhaps a problem a lawyer
cannot help with (emotional or physical
problems).
The Trust Factor
 Lawyer should build trust along the way –
without it the client will not listen to the
lawyer.
 HOW?
– Competent communication –clear and
comprehensible
– Open and accurate
Offer Clear Options
 Give client enough information to be an
effective decision maker.
 Explain what an option means for the
client and use language comprehensible to
that client (know your client).
 Never be condescending to a client – but
give descriptions that are appropriate for
that client.
Goals
 Explain to the client how the option fits the
client’s goals and,
 Why the option is a realistic choice for the
client.
 Explain which option is likely to produce
success
– 1. Has the option produced success in the
past?
– 2. Explain success – winning at litigation may
not produce immediate tangible benefit for a
client. (appeal, difficulty of collecting
judgment)
Strike a Balance Between
Certainty and Flexibility
 Tell client absolutely accurate predictions
are not possible and explain why.
 Give information about which of a set of
options is most likely to yield success.
 Should be able to give a client reasonably
definite information about whether chances
of success are good or remote.
“Real World Solutions”
 Avoid abstract or theoretical solutionswould you advise a client to play hardball
in a fee dispute with one of his long-time
customers?
 Remember, real people are involved and
affected by your advice to your client.
 Feel the pain – recognize existence of
client’s emotional concerns – bankruptcy,
bet the farm litigation – all cause anxiety.
Considerations in Client Letter
 Audience
– Education, sophistication,experience generally
and with legal matters.
– Treat your client as an intelligent person –
even when making your correspondence clear,
comprehensible, and in lay language.
– Simplify your letter, do not make it simplistic
– no telling who will read the letter!
 Purpose
– What do you hope to accomplish with the
letter
Are you informing?
Persuading?
Advising?
Defending?
Organization
 Heading
 Introductory Paragraph
 Opinion
 Summary of Facts
 Explanation
 Advice
 Closing
Heading
 Establish relationship with reader (if first letter)
 Define issue or goal: to confirm your client’s
instructions/wishes/questions;

 Confirm parameters of recommendation you are
making for further action;
 Confirm (by inference) those related issues not
examined.
Opinion
 Avoid making predictions with certainty
 Put good news in first paragraph – but be
aware client may not read further.
 Put bad news at the end after the client has
had an opportunity to read through
explanation and basis for opinion.
Summary of Facts
 Client may know the facts, but restate them
anyway.
 If letter is a CYA, then client knows facts
you based your assessment on and;
 If facts change, assessment may change.
 Keep fact section short – state facts legally
significant to the issue or important to your
client.
Explanation
 TDR’s require that you give client the
information necessary to make an informed
decision.
 Explain the basis of your opinion in this section.
 Provide necessary information in a
comprehensible not formidable, format.
 Generally, do not use case or statutory cites –
unless client instructs you to do so – in-house
counsel, for example.
Advice
 Recommendation - introductory paragraph
 Expand discussion
– Explain all options and what they mean for
that client.
– Indicate which options are more likely to be
successful.
– Analyze pro’s and con’s of any options client
may have suggested.
– Advise the client which option you think
would be in his/her best interest.
Concluding Paragraph
 Inform the client of scheduled events or
– Possible scheduled events
 Remind client of anything you need from client
 Then, standard closing: “If you have any
questions concerning any of the matters that I
have discussed in this letter, please do not
hesitate to contact me.” or something similar.