It is an ironic commentary on an articulate profession that since 1995, over 850 suits have been filed against attorneys for the failure to communicate effectively with clients and others. These actions spring from a wide range of contretemps, including fee disputes, questions of attorney competence, abandonment of clients and the failure to cooperate with disciplinary boards.

Concomitant with the increase in these lawsuits, courts and regulatory bodies are excusing fewer breaches. Even if a lawyer has cancer, temporal lobe epilepsy or a tumultuous personal life, such factors may not mitigate the failure to communicate -- especially when the attorney has not cooperated with disciplinary investigations.

Further, discipline has become more swift. In New Jersey, for example, according to numbers released from the Office of Attorney Ethics (n1), the total number of disciplinary actions for the first eight months of 1997 is higher than the aggregate total of 1996, with significant increases in disbarment, suspension and reprimand. Only the rate of attorney admonitions is slowing.

Consider the circumstance of an attorney who has communicated with a client on an issue such as fees, and received the client's acquiescence. That communication alone may not stop courts from imposing penalties even after a disciplinary board imposed none because the attorney had seemingly complied with the requirements of effective client communication in regard to his fees (n2).

Paired with the trend toward disciplinary vigor is the rise in requirements for the public display in law offices of codes of conduct. Beginning in January 1998, the Appellate Divisions of the Supreme Court of the state of New York will require lawyers to display a "Statement of Client's Rights" (n3) which states in part:

"(5)You are entitled to have your questions and concerns addressed in a prompt manner and to have your telephone calls returned promptly.

"(6) You are entitled to be kept informed as to the status of your matter and to request and receive copies of papers. You are entitled to sufficient information to allow you to participate meaningfully in the development of your matter."

Harsher Court Sanctions

Recently, courts have added to the penalties recommended by disciplinary boards. In other words, courts may impose more severe sanctions than can the governing disciplinary body.

For example, in In the Matter of Arthur Theodore Hindin (n4), a California case, the state review board imposed the penalty of disbarment as opposed to the two-year stayed

suspension recommended by the bearing judge after finding additional areas of culpability. The attorney disbarred -- a too, too busy litigator -- had no prior disciplinary history, and there were no findings of dishonesty or false statement.

Rather, the court found the "total picture" of the attorney's conduct controlling: Numerous client matters in which the attorney failed to communicate with clients, as well as the failure to perform legal services competently by not devoting enough time to matters, constitutes incompetence and abandonment which the court deemed acts of moral turpitude justifying disbarment.

Florida and Minnesota

Other state supreme courts (n5) have recently imposed higher sanctions in the absence of disciplinary records and intentional misrepresentation and fraud. In The Florida Bar, Complainant v. Keith F. Roberts, the Florida Supreme Court added a 90-day suspension to a reprimand, three years of probation, restitution and a host of other conditions. The court found that the attorney, Keith F. Roberts, mishandled an estate by incorrectly disbursing funds.

Although he acknowledged his mistake, the lawyer took no steps to cure it, and failed to communicate with the client -- even mailing papers to an old address with knowledge that the client had moved. The Florida Supreme Court stated: "Failing to represent one's client zealously, failing to communicate effectively with one's client, and failing to provide competent representation are all serious deficiencies even when there is no evidence of intentional misrepresentation or fraud." (n6)

In In re Petition for Disciplinary Action Against Dennis E. Szymialis (n7) the Minnesota Supreme Court used the total or composite picture approach to mete out punishment --

indefinite suspension -- for an attorney with no prior disciplinary history who did not cooperate with the disciplinary board. The court referred to numerous acts of professional misconduct, including the failure to communicate, which, viewed cumulatively, reflected the attorney's inability properly to discharge his duties. The court noted further that the attorney's cumulative competence picture could only partially be cured by implementing accounting or communication procedures.

In In the Matter of Laurence S. Fordham (n8), no penalty had been imposed by the disciplinary body, but the Supreme Judicial Court of Massachusetts imposed a public censure for charging an excessive fee. While Fordham is not usually cited as a failure-to-communicate case, the issue of effective communication concerning the fee structure is implicit and instructive.

The attorney, Laurence S. Fordham, had charged a fee of $ 50,022.25 for the successful defense of his client in a drunk driving case -- a case with difficult facts and one in which Mr. Fordham was acknowledged (in previous disciplinary hearings) to have creatively used a motion in limine to suppress the Breathalyzer results.

Communicating Fees

At first blush, the bases of effective communication appear to have been covered: The fee arrangement was explained to the client and seemingly understood. Mr. Fordham had explained that although he was an experienced civil litigator, he had never tried a criminal case. The hearing committee found that the client had entered into the transaction with "open eyes" after interviewing other lawyers with more experience in such matters (n9). Bar counsel and Mr. Fordham stipulated that he and his associates did all the work they billed and that he acted conscientiously, diligently and in good faith.

In reaching its decision, however, the court noted two communication-related factors. First, the hearing committee, while finding that the fee arrangement had been fully disclosed, also found that the client's father "did not appear to have understood in any real sense the implications of choosing Fordham. . . . Fordham did not give Clark an estimate of the total expected fee or the number of $ 200 hours that would be required." (n10)

Second, the court found that, even though the client acquiesced to the fee with only mild expressions of concern, that fact did not mean that the fee was not excessive.

If Mr. Fordham was censured for an ineffective fee explanation. Arkansas attorney Richard L. Mays (n11) might consider himself fortunate for only being reprimanded for failing to communicate and assisting paraprofessional and other employees in his firm in performing activities constituting unauthorized practice of law.

This case might well be dubbed "lawyering in absentia." Mr. Mays never communicated with the client in person or on the phone. His staff recruited the client at the scene of an accident, and another staff person settled the case with the insurance company without the client's agreement or knowledge.

Disciplinary Boards

Clients are not the only parties who might be ignored. Not cooperating with disciplinary boards is universally cited as an aggravating factor in assessing penalties (n12). For example, in Szymialis, "a disturbing disregard for the disciplinary process" is discussed as a persuasive factor in considering penalties.

In In the Matter of Barbara Hoppmann (n13), a New York case, the attorney was given an additional year of suspension despite mitigating factors such as time already suspended, pro bono work, letters attesting to integrity and competence contemporaneous to the alleged misdeeds. Nevertheless, the court looked to the "totality of the circumstances" including previous sanctions for similar behavior: the failure to communicate with clients, other attorneys, and failure to cooperate with a legitimate investigation.

In April the Wisconsin Supreme Court handed down a two-year suspension to an already-suspended attorney, Michael B. Sandy, who failed to communicate with clients and successor counsel, neglecting matters and failing to cooperate with the disciplinary process (n14).

Good Excuses Not Enough

Are cancer, (n15) divorce (n16) or temporal lobe epilepsy (n17) enough to mitigate the failure to communicate with clients and other misdeeds when contemporaneous with the faulty behavior? The answer is no, but the results vary. The common thread is the serious result of failing to cooperate with the investigatory or disciplinary process.

Cancer patient and attorney April M. Crain (n18) was disbarred in North Dakota after violating the rule regarding safe-keeping of client property and the rule requiring candor toward a tribunal. The court found her acts constituted conduct involving dishonesty, fraud, deceit or misrepresentation, and failure to respond to the investigation of the state's inquiry committee.

The court noted that while Ms. Crain received cancer treatment, she worked full time, and there was no evidence that her illness contributed to or caused her misconduct. Her conduct included making distributions -- and paying herself -- from an old will when she had actual possession of, and did not disclose constructive knowledge of, a newer will.

Attorney and cancer patient K. Kristine Nowacki (n19) was suspended for 91 days in Florida for failing to act diligently, failing to communicate, failing to supervise employees, in at least one circumstance during which time she "underwent significant trauma and treatment for breast cancer." No mitigation was accorded that particular misconduct during her illness. The court noted aggravating factors: prior disciplinary offenses, a pattern of neglect and multiple offenses.

In affirming a 30-days suspension in The People of the State of Colorado, Complainant v. Larry Douglas Sather, (n20) while considering the effects of the attorney's marriage dissolution and personal bankruptcy, the court commented: "Some members of the court, however, would have imposed a longer suspension." (n21)

In Jay P. Colangelo, Petitioner v. The State Bar of California (n22), the court denied the attorney's assertion that his temporal lobe epilepsy precluded him from a timely response to the state bar proceedings and made the end of his 18-month probation conditional upon his offering satisfactory evidence that his epilepsy would not impair his ability to perform as an attorney.

More cases, swifter penalties, harsher penalties and client rights manifestos -- do they presage a trend? Although it is not valid to answer on the basis of these few recent cases, it is equally clear that these cases carry messages for practitioners.

Improving Communication

Written fee agreements are a requisite protection, but attorneys must take time to explain the agreement and allow clients to ask questions. Special terms, such as arbitration clauses, need to be explained fully. If the matter promises to be lengthy, a budget should be part of the agreement.

Prudent attorneys should establish an office policy for a timely response to phone calls and other communiques from clients. Time requirements should be set and tracked in every case. In the age of e-mail, faxes, cell phones and beepers, a timely response to clients is becoming ever more critical as consumer expectations have changed.

Correspondence files -- including copies of all documents sent to and received from clients -- should be maintained.

Staff members involved in the client's matter, be they lawyers or nonlawyers, need adequate and consistent supervision.

These are basics, but as shown in recent cases, even these requisites are not always met, or well met. Attorneys should be cognizant that even serious excuses for ineffective client contact carry little weight as mitigating factors. Paired with courts' new willingness to view incompetence and abandonment as outgrowths of poor communication, it would be wise to focus on the first line of defense: Communicate with clients.

n1 New Jersey Lawyer, Sept. 8, 1997, at 1.
n2 In the Matter of Laurence S. Fordham, 668 N.E.2d 816 (Mass. S.J.C. Aug. 9, 1996).
n3 Part 1210, Title 22, of the Official Compilation of Codes, Rules and Regulations, N.Y.
n4 In the Matter of Arthur Theodore Hindin, 3 Cal. State Bar Ct. Rptr. 657 (Review Dep't of the State Bar Court, May 28, 1997).
n5 The Florida Bar, Complainant v. Keith F. Roberts, 689 So. 2d 1049 (Supreme Ct. of Fla., Feb. 27, 1997).
n6 Id. at 1051.
n7 In re Petition for Disciplinary Action Against Dennis E. Szymialis, 557 N.W.2d 554 (Supreme Ct. Minn., Jan. 9, 1997).
n8 Fordham, 668 N.E.2d at 816.
n9 Id. at 820.
n10 668 N.E.2d 823.
n11 Richard L. Mays v. James Neal Executive Director of the Supreme Court Committee on Professional Conduct, 938 S.W.2d 830 (Supreme Ct. Ark., Feb. 17, 1997).
n12 Szymialis, 557 N.W.2d, at 558.
n13 In the Matter of Barbara Hoppmann, 230 A.D.2d 213 (2d Dep't N.Y., April 7, 1997).
n14 In the Matter of Disciplinary Proceedings Against Michael B. Sandy, 561 N.W.2d 327 (Sup. Ct. La., April 16, 1997).
n15 Disciplinary Board of the Supreme Court of the State of North Dakota, Petitioner v. April M. Crain, Respondent, 556 N.W.2d 404 (July 16, 1997); The Florida Bar, Complainant v. K. Kristine Nowacki, Respondent, 607 So. 2d 828 (July 17, 1997).
n16 The People of the State of Colorado, Complainant v. Larry Douglas Sather, 936 P.2d 576, (Sup. Ct. Colo., April 21, 1987).
n17 Jay P. Colangelo, Petitioner v. The State Bar of California, 812 P.2d 200 (Sup. Ct. Cal., July 15, 1991).
n18 Crain. 556 N.W.2d 404.
n19 Nowacki, 607 So. 2d 828.
n20 Sather, 936 P.2d 576.
n21 Id.
n22 Colangelo, 812 P.2d 200.

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