Law Practice Essentials

Assuming that there are no practical exigencies requiring you to act for a client without prior consultation, you must consider before each decision in a matter whether and to what extent the client’s instructions should be sought. Even an apparently routine step that clearly falls within your authority may warrant prior consultation, depending on circumstances such as a particular client's desire to be involved in the day-to-day conduct of their matter (Code of Conduct, Rule 3.2-4, Commentary [1]).

If you are seeking instructions, it is likely that you are providing your client with more than one option for proceeding each with their own potential benefits and risks. You have a duty to communicate effectively and use reasonable efforts to ensure that the client comprehends your advice and recommendations (see Commentary [3] to Rule 3.2-1 of the Code). What is effective will vary depending on the nature of the retainer, the needs and sophistication of the client and the need for the client to make fully informed decisions and provide instructions.

Documenting the advice provided, and the information and assumptions that the advice is based on, is as important as documenting the client’s instructions. Communicating this information in writing to your client will not only minimize the risk of misunderstandings from occurring but will help if the approach taken on a matter needs to be reassessed in the future. You will also find it to be helpful should a claim or complaint be made against you.

If your initial communication when seeking instructions is in person or by phone, you may find it helpful to set aside a few minutes after your meeting to confirm the advice and instructions in writing while the information is still fresh in your mind. A general note, such as “options were discussed”, is not sufficient as you and your client may not recall or agree on what that meant at a later date. Your communication should be detailed enough that the content makes sense if you need to review it years later.