I occasionally see or hear of family court judges issuing instructions for orders but asking attorneys not to reveal their ruling to their clients until the order is signed and filed. These judges’ rationale is that, until the order is entered, they reserve the right to change their ruling.
I believe such requests are inappropriate. Rule 1.4(a), specifically Rule 1.4(a)(3), of the South Carolina Rules of Professional Conduct, requires a lawyer to “keep the client reasonably informed about the status of the matter.” Knowing a judge’s preliminary ruling but keeping that ruling from the client violates that rule of professional conduct. Certainly clients are less prone than attorneys are to understand that a judge might alter his or her decision–but it’s the attorney’s responsibility to educate the client as to that possibility.
Keeping the client uninformed of the judge’s preliminary decision prevents the client from seeking timely advise on potential responses. As comment 5 to this rule notes:
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.
By delaying informing the client of the judge’s preliminary decision, one hinders the client’s ability to make plans based on that decision. For example if the client will lose custody of a child as a result of that decision, the client and attorney might plan methods of reversing that decision–potentially on an expedited basis. If the judge’s decision has financial consequences for the client, that client deserves to know about those consequences immediately so that the client can make financial decisions based on that ruling or consider actions that would alter the ruling.
There are circumstances in which an attorney can, at a judge’s request, delay informing the client of the judge’s decision. Comment 7 to Rule 1.4 authorizes delaying relaying information to a client “when the client would be likely to react imprudently to an immediate communication.” A judge who is concerned that a party might harm or abscond with a child when informed of the ruling can probably demand the attorneys delay informing the client of his or her decision until the order is filed and safety precautions are in place. Similarly for a judge ordering a party out of a residence who has concerns about that party destroying the residence. Thankfully, in over 20 years of practice, these issues have never arisen.
Absent concerns of a client reacting imprudently, I do not believe a judge can ever ask attorneys to withhold information about his or her preliminary ruling from the litigants.
I agree completely
I concur. My position has always been that case is the client’s case.