(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
(c) A lawyer who receives an offer of settlement in a civil case or proffered plea bargain in a criminal case shall inform the client promptly of the substance of the communication.
Comment
[1] The client should have sufficient information
to participate intelligently in decisions 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. For example,
a lawyer negotiating on behalf of a client should provide the client
with facts relevant to the matter, inform the client of communications
from another party, and take other reasonable steps that permit the
client to make a decision regarding a serious offer from another party.
A lawyer who receives from opposing counsel an offer of settlement in
a civil controversy or a proffered plea bargain in a criminal case is
required to inform the client promptly of its substance. See
Rule 1.2(a). Even when a client delegates authority to the lawyer, the
client should be kept advised of the status of the matter.
[2] A client is entitled to whatever information the
client wishes about all aspects of the subject matter of the representation
unless the client expressly consents not to have certain information
passed on. The lawyer must be particularly careful to ensure that decisions
of the client are made only after the client has been informed of all
relevant considerations. The lawyer must initiate and maintain the consultative
and decision-making process if the client does not do so and must ensure
that the ongoing process is thorough and complete.
[3] Adequacy of communication depends in part on the
kind of advice or assistance involved. The guiding principle is that
the lawyer should fulfill reasonable client expectations for information
consistent with (1) the duty to act in the client’s best interests,
and (2) the client’s overall requirements and objectives as to
the character of representation.
[4] 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 mental disability. 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.
Practical exigency may also require a lawyer to act for a client without
prior consultation. When the lawyer is conducting a trial, it is often
not possible for the lawyer to consult with the client and obtain the
client’s acquiescence in tactical matters arising during the course
of trial. It is sufficient if the lawyer consults with the client in
advance of trial on significant issues that can be anticipated as arising
during the course of the trial, and consults during trial to the extent
practical, given the nature of the trial process.
Withholding Information
[5] In rare 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. Similarly, a lawyer
may be justified, for humanitarian reasons, in not conveying certain
information, for example, where the information would merely be upsetting
to a terminally ill client. A lawyer may not withhold information to
serve the lawyer’s own interest or convenience. Rules or court
orders governing litigation (such as a protective order limiting access
to certain types of discovery material to counsel only) 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.
