As the only State Bar lawyer who works in both the disciplinary and the ethics departments of the State Bar, I may have a unique perspective on the complaints that I process for the discipline department. I am sometimes amazed at apparently routine conduct that clearly violates a Rule of Professional Conduct. For example, it has recently come to our attention that many lawyers use a postcard to notify a client of important information regarding the client’s case. At first blush, it shocked me that lawyers would use postcards for anything other than a change of address notice. It was even more surprising for me to learn that many lawyers use this mechanism to communicate court dates and outstanding attorney fees.
Rule 1.4(a)(3) requires a lawyer to keep the client reasonably informed about the status of the client’s matter. Lawyers can comply with the rule in several ways. The lawyer and/or the paralegal may telephone the client, meet with the client face-to-face, or send a written communication.
When communicating about a client matter, whether to the client directly or to a third party on a client’s behalf, a lawyer has an obligation to protect the client’s confidences. Rule 1.6 provides:
(a) A lawyer shall not reveal information acquired during the professional relationship with a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b)…[exceptions to the duty of confidentiality in paragraph (b) are not relevant here].
In a criminal matter, for example, the client may have a scheduled court appearance. Under such circumstances, the lawyer has an obligation to make sure the client is aware of the court date and whether his/her attendance is required. If the lawyer chooses to provide notice to the client in writing, the lawyer may reason that a postcard is cheaper and easier even if the better practice is to enclose a letter in a sealed envelope. The question is, “Is it ethical?”
Lawyers frequently conclude that as long as the information on the postcard is a matter of public record, like information that would be found in a court file in the typical traffic, criminal, or civil case, the information is not confidential and, therefore, disclosure does not breach the client’s confidence. Comment 8 to Rule 1.9, provides, however, that the “mere fact that information is accessible through the public record or has become known to some other persons, does not necessarily deprive the information of its confidential nature.”
The mail man certainly does not know of the recipient’s pending court matters. In addition, other people living in or near the client’s residence may not be aware that their relative or neighbor is charged with a crime or a traffic offense, or is being sued in a civil matter. A postcard that directs the client to appear in court on a certain date is enough information to alert unintended readers that the client has a legal matter pending in the court system.
[T]he lawyer must take steps to minimize the risks that confidential information may be disclosed…[and]…must use reasonable care to select a mode of communication that, in light of the exigencies of the existing circumstances, will best maintain any confidential information that might be conveyed in the communication.
RPC 215. It is simply not reasonable to assume that no third parties will read a postcard even if it is illegal, unethical, or just plain impolite to read someone else’s mail.
Unless the client gives informed consent, use of postcards is not a reasonable way to communicate sensitive information to a client. “Informed consent” means “agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation appropriate to the circumstances.” Rule 1.0(f). Informed consent requires a lawyer to clearly explain to the client that postcards will be used to communicate certain specified information. If the client understands and gives consent, then there is no violation of the rule. Using postcards but receiving no complaint from a client is not tantamount to implied authorization or informed consent.
Just because the lawyer next door uses the cheap and easy postcard doesn’t mean that it is a permitted mechanism for communicating with a client.
Nichole McLaughlin is assistant ethics counsel and deputy counsel for the State Bar.