Rule 1.4. Communication

(a) A lawyer shall:

« Rule 1.4. »

(1) promptly inform the client of any decision or circumstance with

respect to which the client’s informed consent, as defined in Rule 1.0(e), is

required by these Rules;

(2) reasonably consult with the client about the means by which the

client’s objectives are to be accomplished;

(3) keep the client reasonably informed about the status of the matter;

(4) promptly comply with reasonable requests for information; and

(5) consult with the client about any relevant limitation on the lawyer’s

conduct when the lawyer knows that the client expects assistance not

permitted by the Rules of Professional Conduct or other law.

(b) A lawyer shall explain a matter to the extent reasonably necessary to

permit the client to make informed decisions regarding the representation.

COMMENT

[1] Reasonable communication between the lawyer and the client is

necessary for the client effectively to participate in the representation.

[2] Communicating with client. — If these Rules require that a particular

decision about the representation be made by the client, paragraph (a)(1)

requires that the lawyer promptly consult with and secure the client’s

consent prior to taking 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).

[3] Paragraph (a)(2) requires the lawyer to reasonably consult with the

client about the means to be used to accomplish the client’s objectives. In

in 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).

[3] Paragraph (a)(2) 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)(3) 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.

[4] 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)(4) requires prompt compliance with

the request, or if a prompt response is not feasible, that the lawyer, or a

member of the lawyer’s staff, acknowledge receipt of the request and

advise the client when a response may be expected. A lawyer should

promptly respond to or acknowledge client communications.

[5] Explaining matters. — The client should have sufficient information

to participate intelligently indecisions 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

est and

advise the client when a response may be expected. A lawyer should

promptly respond to or acknowledge client communications.

[5] Explaining matters. — The client should have sufficient information

to participate intelligently indecisions 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 affected by a conflict of interest, the client must give

informed consent, as defined in Rule 1.0(e).

uld 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 affected by a conflict of interest, the client must give

informed consent, as defined in Rule 1.0(e).

[6] 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 diminished 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.

[7] 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.

NOTES TO DECISIONS

ndicates 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.

NOTES TO DECISIONS

Client relations.

— Communication.

Sanctions.

— Reprimand.

— Suspension.

Client relations.

— Communication.

Analysis

Lawyer’s duty to communicate under subsection (b) runs only to a client

and presupposes, for the duty to arise, the existence of a lawyer-client

relationship. In re Berl, 540 A.2d 410 (Del. 1988); In re Berl, 560 A.2d

1009 (Del. 1989).

Subsection (b) violation could not be sustained without more

particularized findings by the Board on Professional Responsibility

establishing that attorney, at a particular time, came under a lawyer-client

relationship from which a duty arose to inform plaintiff of the application

and relevance of 18 Del. C. § 6865, notwithstanding plaintiff’s relationship

with his attorney of record. In re Berl, 540 A.2d 410 (Del. 1988); In re

Berl, 560 A.2d 1009 (Del. 1989).

Failure either to file several dues collection cases, or keep client

informed of his progress in relation to these cases, violated Prof. Cond.

Rule 1.3 and subsection (a) of this Rule. In re McCann, 669 A.2d 49 (Del.

1995).

Attorney’s failing to consult with client prior to agreeing to dismiss a

discrimination complaint violated subsection (b). In re Maguire, 725 A.2d

417 (Del. 1999).

Attorney’s failure to keep a client informed about the status of her case

and to explain certain matters violated this rule. In re Sullivan, 727 A.2d

832 (Del. 1999)

ection (a) of this Rule. In re McCann, 669 A.2d 49 (Del.

1995).

Attorney’s failing to consult with client prior to agreeing to dismiss a

discrimination complaint violated subsection (b). In re Maguire, 725 A.2d

417 (Del. 1999).

Attorney’s failure to keep a client informed about the status of her case

and to explain certain matters violated this rule. In re Sullivan, 727 A.2d

832 (Del. 1999).

Where attorney violated Rule 1.2(a), Rule 1.3, Rule 1.4(a) and (b), Rule

1.15(a) and (d), Rule 1.16(b) and (d), and Rule 3.4 (c), attorney agreed to

pay all the costs of the disciplinary proceedings, the costs of the

investigatory audits performed by the Lawyers’ Fund for Client Protection,

the restitution noted in the parties stipulation, and consented to the

imposition of a public reprimand with a public four-year probation with

conditions. In re Solomon, 745 A.2d 874 (Del. 1999).

Attorney’s failure over a period of six years to communicate with client,

and failure to notify the client of the dismissal of the no-fault lawsuit were

in violation subsection (a) of this rule. In re Becker, 788 A.2d 527 (Del.

2001).

Attorney’s misrepresentation to a Family Court that a client was not in

arrears with regard to alimony and had paid the debt in full was

determined to have been an act of dishonesty, fraud, deceit, or

misrepresentation in violation of Law. Prof. Conduct R. 8.4(c) and (d), a

failure to provide competent representation to the client, in violation of

Law. Prof. Conduct R. 1.1, and a failure to explain a matter to the extent

reasonably necessary to permit the client to make informed decisions, in

violation of Law. Prof. Conduct R

determined to have been an act of dishonesty, fraud, deceit, or

misrepresentation in violation of Law. Prof. Conduct R. 8.4(c) and (d), a

failure to provide competent representation to the client, in violation of

Law. Prof. Conduct R. 1.1, and a failure to explain a matter to the extent

reasonably necessary to permit the client to make informed decisions, in

violation of Law. Prof. Conduct R. 1.4(b); the misrepresentation was found

to have been knowingly made, but the recommended suspension of 2 years

was reduced to 6 months, because mitigating circumstances were found in

the

nature

of the

attorney

providing

the

Family

Court with

correspondence, which would have permitted the Family Court and the

adverse party an opportunity to verify the debt. In re Chasanov, 869 A.2d

327 (Del. 2005).

Attorney’s acceptance of a retainer of $250 from a client through a

prepaid legal plan, while never contacting the client and refusing to refund

the retainer until after the first disciplinary hearing, was held to have

violated Law. Prof. Conduct R. 1.3, with regard to acting with reasonable

diligence and promptness, Law. Prof. Conduct R. 1.4(a) and (b), with

regard to failing to keep the client reasonably informed to the extent

reasonably necessary to permit the client to make informed decisions, and,

Law. Prof. Conduct R. 1.15(b) and (d), with regard to failing to safeguard

the client’s funds and deliver them upon request; the prepaid legal firm

had refused to refund the retainer and, in fact, showed no record of the

amount, which had been paid directly to the attorney. In re Chasanov, 869

A.2d 327 (Del. 2005).

Attorney violated Law. R. Prof. Conduct 1.4(a) by: (1) failing to consult

with a divorce about the contents of the petitioner’s answer to the

respondent’s counterclaim; (2) failing to respond to the client’s attempts to

inquire as to status of a Family Court case over a period of 2 weeks; and

the

amount, which had been paid directly to the attorney. In re Chasanov, 869

A.2d 327 (Del. 2005).

Attorney violated Law. R. Prof. Conduct 1.4(a) by: (1) failing to consult

with a divorce about the contents of the petitioner’s answer to the

respondent’s counterclaim; (2) failing to respond to the client’s attempts to

inquire as to status of a Family Court case over a period of 2 weeks; and

(3) failing promptly to inform the client that a final divorce decree and

other orders had been entered by the Family Court. In re Pankowski, 947

A.2d 1122 (Del. 2007).

Defendant’s motion for postconviction relief was denied because

defendant did not explain how counsel’s attempt to reduce defendant’s

confusion over the term “evidentiary hearing” was objectively

unreasonable or prejudicial to the case; where the attorney attempted to

clarify that what defendant called an “evidentiary hearing” was, in fact,

referred to as a motion to suppress, the failure of the attorney’s attempt to

clear up defendant’s understanding of motions to suppress was not

evidence that counsel’s actions were objectively unreasonable. State v.

Addison, 2007 Del. Super. LEXIS 441 (Del. Super. Ct. June 15, 2007).

Attorney was suspended from the practice of law for 3 months, followed

by a 1-year period of probation, for violating Law. R. Prof. Conduct 1.1,

1.4(b), 1.7, and 1.16(a) (Interpretative Guideline Re: Residential real estate

transactions); the attorney failed to obtain the clients’ consent to a conflict

of interest that arose when the attorney represented both the borrower and

the lender in a loan transaction, and failed to inform the clients of their

3-day right to rescind. In re Katz, 981 A.2d 1133 (Del. 2009)

. R. Prof. Conduct 1.1,

1.4(b), 1.7, and 1.16(a) (Interpretative Guideline Re: Residential real estate

transactions); the attorney failed to obtain the clients’ consent to a conflict

of interest that arose when the attorney represented both the borrower and

the lender in a loan transaction, and failed to inform the clients of their

3-day right to rescind. In re Katz, 981 A.2d 1133 (Del. 2009).

Counsel for a disabled person was presumed to have had lawful

authority to settle a personal injury action, where (1) the disabled person’s

guardian, did not successfully rebut that presumption by claiming the

guardian either agreed to the settlement under duress or failed to agree to

it at all; (2) counsel’s notes and letters supported the finding of a

settlement agreement; (3) counsel properly informed the guardian about

the agreement pursuant to obligations under Law. R. Prof. Conduct 1.4(a)

(1); and (4) the fact that the agreement was oral did not render it

unenforceable under the statute of frauds, 6 Del. C. § 2714(a). Williams v.

Chancellor Care Ctr., 2009 Del. Super. LEXIS 166 (Del. Super. Ct. Apr. 22,

2009).

Where an attorney committed violations of Law. R. Prof. Conduct 1.1,

1.4(b), and 1.16 during the course of 10 closings for a private money

lender, a public reprimand was deemed the appropriate sanction; the

attorney had ethical duties to disclose to the borrowers a conflict of interest

and the fact that the loan documents were inadequate, even though the

attorney did not represent them, as they had no attorneys. In re Goldstein,

990 A.2d 404 (Del. 2010).

Attorney whose multiple federal actions for assorted clients were

dismissed due to failure to respond to dismissal or summary judgment

motions violated Law. R. Prof

uties to disclose to the borrowers a conflict of interest

and the fact that the loan documents were inadequate, even though the

attorney did not represent them, as they had no attorneys. In re Goldstein,

990 A.2d 404 (Del. 2010).

Attorney whose multiple federal actions for assorted clients were

dismissed due to failure to respond to dismissal or summary judgment

motions violated Law. R. Prof. Conduct 1.1, 1.3, 1.4, 1.5, and 8.4,

warranting a 2-year suspension from the practice of law, with conditions

where: (1) the attorney had an unblemished record; (2) the attorney had

undergone 2 eye surgeries; (3) the attorney had suffered the loss of a half-

sibling; but (4) the conduct was deemed “knowing” and evidenced

engagement in a pattern of misconduct. In re Feuerhake, 998 A.2d 850

(Del. 2010).

Attorney did not violate Law. Prof. Conduct R. 1.4(a)(4) for failing to

explain to a client the various forms of joint ownership available and their

legal implications; the attorney was not retained to do any more than take

the matter to closing, which required compliance with condominium

council titling requirements. In re Sisk, 54 A.3d 257 (Del. 2012).

Lawyer violated Law. Prof. Conduct R. 1.4(a)(3) and (4) by failing to

provide information, including negotiations status and a client’s file,

despite client’s multiple requests. In re Wilks, 99 A.3d 228 (Del. 2014).

Sanctions.

— Reprimand.

For the violation of both subdivision (b) of this Rule and Rule 1.5(e)(1),

the appropriate sanction to be imposed is a public reprimand. In re Berl,

560 A.2d 1009 (Del. 1989).

Because an attorney neglected client’s matters, failed to promptly

disburse client funds, and failed to cooperate with disciplinary authorities,

the attorney violated Law. R. Prof. Conduct 1.1, 1.3, 1.4(a)(3), (4), 1.15(d),

and 8.1(b); accordingly, the attorney was publicly reprimanded and placed

on probation for 18 months with the imposition of certain conditions. In re

Member of the Bar of the Supreme Court of Del., 999 A.2d 853 (Del

rs, failed to promptly

disburse client funds, and failed to cooperate with disciplinary authorities,

the attorney violated Law. R. Prof. Conduct 1.1, 1.3, 1.4(a)(3), (4), 1.15(d),

and 8.1(b); accordingly, the attorney was publicly reprimanded and placed

on probation for 18 months with the imposition of certain conditions. In re

Member of the Bar of the Supreme Court of Del., 999 A.2d 853 (Del.

2010).

Attorney was publicly reprimanded and placed on conditional probation

for violating Law. Prof. Conduct R. 1.1, 1.3, 1.4(a)(3), (4), 1.15(b), and

8.1(b) where the attorney: (1) failed to timely distribute settlement funds;

(2) failed to communicate with a personal injury client; and (3) failed to

keep the Office of Disciplinary Counsel informed of changes. In re Siegel,

47 A.3d 523 (Del. 2012).

— Suspension.

Attorney, who was on probation for previous violations of the Rules of

Professional Conduct and who violated Law. Prof. Conduct R. 1.1, 1.2(a),

1.4(a), 1.15(a), 8.1, 8.1(b), 8.4(c), and 8.4(d), and Law. Disc. P. R. 7(c),

was suspended from the practice of law in Delaware for 3 years after the

Board on Professional Responsibility found that the attorney’s problems

appeared to be getting worse and included: co-mingling client trust funds;

inadequate bookkeeping and safeguarding of client funds; inadequate

maintenance of books and records; knowingly making false statements of

material fact to the ODC; false representations in certificates of

compliance for 3 years; and failure to file corporate tax returns for 3 years.

In re Becker, 947 A.2d 1120 (Del. 2008).

Del. Rules of Prof'l Conduct Rule 1.5