Rachelle Cohen is a principal at Valensi Rose, PLC in Los Angeles, a former Chair of the LACBA Professional Responsibility and Ethics Committee, and a member of and Vice-Chair of the California Lawyers Association Ethics Committee. The views expressed are her own. 

Articles are provided regularly by LACBA’s longstanding Professional Responsibility and Ethics Committee.

In our world of quick and instantaneous interactions, lawyers and clients often communicate and come to agreement by email or text messages.  Rule 1.4 of the California Rules of Professional Conduct requires lawyers to reasonably consult with the clients about the means used to accomplish the objectives and to keep clients reasonably informed about significant developments, but there is no requirement of a written communication.  Many clients and lawyers prefer to communicate by email or even by text message, because these methods allow easier and quicker transmission and facilitate faster receipt through computers and cell phones rather than wading through the regular mail.  The form of communication is a matter of choice between the lawyer and client, and a lawyer should ask a client how best to communicate with the client. But must lawyers use more formality in any particular communications? 

Some of the rules require "informed written consent", such as for example, if the lawyer has a conflict covered by Rule 1.7(b) (there is a significant risk the lawyer's representation will be materially limited by the lawyer's responsibilities to or relationships with another client, a former client or a third person, or by the lawyer's own interests).  As defined in Rule 1.0.1(e) and (e-1), informed written consent only requires that a person agrees in writing (after certain written disclosures).  The rules define a "writing" in Rule 1.0.1(n) in reference to Evidence Code Section 250,  which has a broad definition that covers emails and "every other means of recording upon any tangible thing, any form of communication or representation, including letters, word, pictures, sounds, or symbols, or combinations thereof,  and any record thereby created, regardless of the manner in which the record has been stored." 

Therefore, even to obtain informed written consent as required under the Rules of Professional Conduct, a lawyer could communicate by email or text message.  And the client could provide the written consent by responding to the email or text message.  Of course, a lawyer should be cautious that the method of communication is conducive to meeting the "informed" part of the require consent.  For example, a lawyer entering into a business transaction under Rule 1.8.1 might find it difficult  to fully explain the lawyer's role in the transaction and to otherwise comply with what needs to be communicated to the client through a text message. 

Furthermore, a lawyer should communicate to obtain informed written consent in a way that the lawyer can record the results.  If a lawyer provides a written disclosure and the client consents by email, those email should be saved to the client's file, digital or otherwise.

However, there is one area where lawyers should be cautious about relying on less formal ways of communicating, and that is with fee agreements.  For fee agreements that must be in writing under Cal. Business & Professions Code §§ 6147 or 6148, the agreement must be signed by the lawyer and client, and the lawyer must provide to the client a copy of the agreement signed by both the lawyer and the client.[1]  If a lawyer's fee agreement does not comply with Sections 6147 or 6148 but is subject to those rules, the client may void the agreement and the lawyer then is entitled to a reasonable fee.  See Cal. Business & Professions Code §§ 6147(b) and 6148 (c).[2]

In Leighton v. Forster, (2017) 8 Cal. App. 5th 467, the Court of Appeal affirmed a summary judgment motion on a breach of attorney fee agreement brought by an attorney against her client, because the attorney did not have a valid fee agreement under Cal. Bus. & Prof. Code Section 6148.  The attorney had sent a fee agreement by email, but told the client he didn't need to sign, but rather the client could let her know by email that he agreed to the fee agreement (the client did not).  The court noted that the requirements in Section 6148 are mandatory requirements and cannot be satisfied by a technicality such as a client accepting the terms by email. This holding is consistent with courts strictly construing attorney fee agreements against the lawyer.  See Severson & Werson v. Bolinger, (1991) 235 Cal. App. 3d 1569; Alderman v. Hamilton, (1988) 205 Cal. App. 3d 1033, 847-48. 

Lawyers should be careful to continue to get fee agreements that fall under Cal. Bus. & Prof. Code Sections 6147 and 6148 fully signed.  With digital signing software, like DocuSign or equivalent software programs, clients and lawyers may provide digital signatures from their computers and phones, which makes the signing process operate efficiently for those who want to conduct business digitally.  Lawyers should have a process to download and save the signed fee agreements from any digital signing software used.  The record stored in a signing software program might later not be retrievable.

Also, under Cal. Bus. & Prof. Code Sections 6147 and 6148, a lawyer must provide the client with a "duplicate copy" of the fully signed fee agreement at the time it is signed.  Digital signing software often allows a client to download a fully signed copy or can email the client a fully signed copy, but it is a good practice for the lawyer to send the client a fully signed copy so the lawyer can maintain a record of that transmission.

Although writings between lawyers and clients have evolved with technology, lawyers should keep in mind the fee agreement signature requirements under Cal. Bus. & Prof. Code Sections 6147 and 6148 to make sure they comply with those provisions even if using digital signing software.