By Rachelle Cohen
An attorney I met recently lamented that he spends most of his workdays reacting to emails. He starts each day with a long to-do list and feels lucky to finish one or two things under the incessant email barrage. I can relate. Those of us who are on email listservs have no doubt received an email flurry sparked by an interesting (or not so interesting) question or important (or not so important) piece of news and have seen the frantic emails from attorneys begging to be removed from the listserv and pleading with others to not “Reply All.”
When email was emerging, it was thought of as the less formal way to communicate. See “Note: The Impact of E-mail on Attorney Practice and Ethics,” 34 McGeorge L. Rev. 135 (Fall, 2002). Now, email is one of the more formal approaches to communicating with clients. Most people now also communicate by text or through social media platforms, and clients increasingly use these methods to communicate with lawyers. More people communicate on the go, during and after work, from cars, homes, gyms, and anywhere else with cell service or Wi-Fi, on multiple devices, and throughout the day and evening.
With the speed and volume of communications, it seems more likely lawyers might miss important communications (and that clients might miss important communications from lawyers). For example, a lawyer might
- forget to check a spam filter (that can be overactive in identifying “junk” emails that are, in fact, not junk) for a few days and find an email from opposing counsel communicating an offer that by then has expired;
- look at his phone late at night and intend to delete an unimportant email and accidentally delete the next one, an important email from a client giving instructions on how to respond to an offer by opposing counsel;
- glance at a text message from a client requesting a meeting to discuss the client’s case and intend to reply later that day, but then forget as the text message recedes from view on the lawyer’s phone;
- compose an email to a client but fail to hit send and then find the email days later in a drafts folder; or
- send an email to the wrong person.
Although the pace and deluge of communications raise time management concerns, do they also raise ethical concerns?
Under California Rules of Professional Conduct, rule 1.1, a lawyer may not “intentionally, recklessly, with gross negligence, or repeatedly fail to perform legal services with competence.” A lawyer’s competence is measured by the “mental, emotional, and physical ability reasonably necessary for the performance of such service.” Lawyers also must act with reasonable diligence (rule 1.3), which requires acting with a commitment to the client and not neglecting, disregarding, or unduly delaying a legal matter entrusted to the lawyer.
In addition to acting with competence and diligence, lawyers must reasonably communicate with clients and keep clients reasonably informed in accordance with rule 1.4 (and regarding settlements, with rule 1.4.1). The definition of “reasonable” under the Rules of Professional Conduct is “the conduct of a reasonably prudent and competent lawyer.” (rule 1.0.1(h))
The question then is whether a reasonably prudent and competent lawyer will miss communications from time to time that interfere with the ability to fulfill the lawyer’s duties. I expect most lawyers have lost or missed a client email or text. Lawyers are human and make errors, and some missed communications are reasonable, just as before email, a lawyer might have missed a piece of mail buried on a desk or lost in an intra-office delivery system. Simple human error, whether in dealing with communications on paper or electronically, could create civil liability but shouldn’t be the basis for professional discipline. A lawyer who accidentally misses a communication would not seem to meet the standard in rule 1.1(a) of repeatedly failing to act competently or acting intentionally, recklessly, or with gross negligence.
While no case law or ethics opinions were located that speak to this issue, if a lawyer needs help keeping up with communications, it would be prudent for the lawyer to consider how to avoid mistakes. At some point, repeated missed communications might rise to a level of gross negligence. As noted in California State Bar Professional Responsibility and Conduct Op. 2021-206, inability to comply with duties because of personal matters or a heavy caseload does not relieve a lawyer from having to abide by the Rules of Professional Conduct. The volume and speed of communications is unlikely to serve as any relief.
Some possible considerations to limit missed communications might include:
- limiting communication methods, for instance, by directing clients to communicate through a client portal
- not looking at text messages or emails until you are able to deal with them
- having an assistant review emails or other communications to alert you to important messages
- using automated tools to allow clients and others to schedule time to speak with you
- using different email addresses for personal matters, volunteer work, outside business interests, and your communications as a lawyer.
In addition, consider how to remind yourself of your communication to-do list. For example, if you keep emails in your inbox until you have dealt with them, you should be careful not to let your inbox back up to the point that important emails can get buried. Setting aside time at the beginning or end of your day to clear out your inbox might help. If a client messages you by text or social media and you cannot respond in the moment, you might respond quickly that you will respond more fully later. To remember to respond later, you could set a reminder or a note on your phone that pops up at a more convenient time to remind you to respond. And for some of us, pen and paper might still serve as a way to remind us of people we need to communicate with.
The practice of law and the way we communicate with clients is constantly changing, but our duties to our clients to exercise diligence, to be competent, and to communicate effectively remain despite the increased demands on our attention.
Rachelle Cohen is a principal at Valensi Rose, PLC, and a member of California Lawyers Association’s Ethics Committee. The views expressed are her own.