When Bad News Can't Wait

I’ve spent the last day-plus at another engaging Association of Professional Responsibility Lawyers (APRL) conference, and just like last year at this same conference, and just like when I was on vacation last year, I got some big news from the courts.   

Some of this exciting and completely ill-timed news has been good. And some of it, well, not so much. I was on a Washington, DC metro bus last year and decided to use the downtime to check my emails and logged on to find some news I really didn’t want to see. (Yes, I was that person muttering obscenities on a city bus. The good news is the other riders were used to it.)

Even 10-15 years ago, this would have been far less of an issue—most people did not have devices capable of retrieving email on a city bus, and courts did not send orders electronically anyway. If a court issued an order on a Friday, it would have been mailed and would have arrived at a more civil time during the week, and if it came while you were on vacation, you probably would not have known about it until you returned to the office.

But now, there are few places where you can truly be “off grid” (and, let’s face it, most of us are not capable of doing that for very long even if we say we want to, which is a blog for another day). So, we’re faced with getting that 3:30 p.m. Friday news while we are in inconvenient places, and figuring out what to do with it.

Almost nobody minds getting a call with good news at whatever hour, and almost nobody wants to get bad news at any hour, even if they must. The question, then, is whether it’s ever appropriate to wait to give clients bad news, or whether the duty under Rule 1.4 to communicate “promptly” really means the discussion needs to wreck someone’s weekend or vacation.

Comment 7 to Model Rule 1.4 discusses delaying communication “when the client would be likely to react imprudently to an immediate communication,” but the example given involves informing an unstable client of results of a psychiatric exam. The comment continues, “A lawyer may not withhold information to serve the lawyer's own interest or convenience or the interests or convenience of another person.”

That said, these rules are rules of reason, and “lawyer’s convenience” is subjective. Truly “immediate” communication is rarely necessary—it would not be reasonable for a lawyer to interrupt a hearing for one client to call another client, short of a literal or metaphorical life-or-death situation (and even then, the judge may not agree to recess).  There is no way to have a private phone conversation from public transit, so in that case, the duty of confidentiality overrode other considerations.

Absent explicit instruction to the contrary, I will absolutely call immediately (or as immediately as possible) when there is a decision that needs to be made quickly, or when there is any reasonable chance the client will find out about the news from someone else (news media, online court dockets). I’ve excused myself from conference sessions and disappeared into an Airbnb bedroom to make those calls. ­­ And yes, these are usually calls—there are a few situations where delivering bad news via email is appropriate (organizational clients with multiple constituents that need the information; an individual client who just won’t answer their phone)—but typically, a heads-up call is preferable.  

Sometimes, though, I get information that isn’t great for my client, but also not urgent. In my practice, that information often comes in the form of an offer from the Office of Lawyer Regulation to enter into a reprimand agreement, or an insulting settlement offer/demand, or a particularly invasive discovery request. This information is non-public and my client will hear about it from me, or not at all. This is not the worst possible thing to occur in most cases, but typically it is not what the client wants. The deadline to respond is weeks away, and the client wouldn’t learn about this from anyone else.  

If this communication comes at 4:30 on the Friday before Christmas, I am generally comfortable waiting to call the client until after the holiday, absent a client preference to the contrary (and I would also wonder why opposing counsel thought it was a power move to do this).

Maybe the lesson here is to find out client preferences in advance. Sometimes, I have asked, “I know you are going on vacation/getting married/studying for another state’s bar exam. If news comes in, and it is nothing that we would need to address before you get back, would you prefer to be interrupted or would you prefer me to wait?”  I have also been aware of my clients’ religious observances—my Seventh Day Adventist client did not want to be contacted on a Friday, and I knew that sending an email they would see later on the weekend when I was not available to answer questions would not be productive, so I waited. Perhaps extending that inquiry to all clients, even during the initial discussions, could solve this problem.

…also, a quick note: I’ve been largely absent from blogging and may continue to be for awhile despite my speaker bio saying I “blog frequently.” As you may know I have an election practice in addition to the ethics work, and being in the swing state of Wisconsin in 2024 is A Lot. I’ll check in as I can.