The lawyer’s ethical duty to listen

The word “listen” and its derivations appear only four times in the Model Rules of Professional Conduct and ABA Annotations. But the mandate to listen to clients pervades them. This post explores the implied affirmative duty to listen to clients. Future posts will explore lawyers’ duty to listen to non-clients and potential clients, and lawyers’ duty not to listen to certain people and information.

Lawyers must be competent, which under Rule 1.1 “requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Comment [5] to Rule 1.1 states that thoroughness and preparation include inquiry into the law and facts, as well as use of “methods and procedures meeting the standards of competent practitioners.” The word “listening” does not appear; the rule and comments do not specify the methodology for collecting information.  Yet listening is a powerful way to glean knowledge about a matter, and sometimes may be the only way to glean certain knowledge (such as a credibility evaluation).

Rule 1.4 sets out the duty of communication, again without using the word “listening” but again implying its importance. Under Rule 1.4(a)(2), the lawyer shall “reasonably consult with the client about the means by which the client’s objectives are to be accomplished.” Implicitly this means listening to the client about the client’s objectives. Comment [2] states that when the client must make a decision about the representation, the lawyer must “promptly consult with and secure the client’s consent . . . unless prior discussions have resolved what action the client wants the lawyer to take.”

Through its references to consultation and discussion, the rule establishes an implied duty to listen. This duty has substantive and procedural components.

The substantive aspect is that a lawyer must listen to what the client says regarding “the client’s objectives” as well as the means of accomplishing them. Listening is implicitly required because the lawyer cannot “reasonably consult” about these things unless the lawyer has, to some degree, listened to the client’s point of view.

And listening is not strictly limited to the literal meaning of what a client says. Under Rule 1.4(a)(5), the lawyer shall “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.” The means of acquiring this knowledge is not constrained. It is a rare client who would directly state, “I expect you to assist me beyond the ethical rules and the law.” Thus the lawyer must listen to the client (and any other source) enough to know when the situation implies such expectations. [The rule on lawyer as advisor (Rule 2.1) and particularly Comment [5] are consistent with this implied duty to listen to the client carefully to understand what the client wants to do, and advise the client accordingly.]

The procedural aspect of listening in Rule 1.4 is that the listening obligation is reasonable but ongoing (to a degree). Focusing first on the “reasonable” qualifier in Rule 1.4 itself, the listening obligation is not eternal and unlimited. After airing out the client’s objectives and ideas on means for accomplishing them, the lawyer should be able to fulfill the duty of reasonable consultation without further listening.

And under comment [3], when the “exigency of the situation” leaves no time for consultation, the duty to listen gives way to the lawyer’s duty to make a reasonable decision and then keep the client informed.

But the lawyer’s duty to listen is not something the lawyer can finish and forget about. Under Rule 1.4(a)(4), the lawyer shall “promptly comply with reasonable requests for information.” This means the lawyer must monitor communications with the client to be able to comply promptly. The lawyer must be open to the client’s requests for information, listen to them, and heed them when they are reasonable.

Collectively, these references and annotations convey the lawyer’s obligation to listen to clients. Many of the implicit references to listening are presented in the form of how the lawyer will consult with or advise the client. Thus the purpose of the listening is not primarily for establishing empathy or building trust—although these are important and valuable side effects of effective listening. The implied duty to listen exists primarily to allow the lawyer to speak and to act on behalf of the client.

The author gratefully acknowledges the feedback of Professor Timothy P. Terrell of Emory Law School on an earlier draft of this post.

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