4.9 Choosing The Right Model for The Right Client/Situation
It is important to recognize that, beyond their practical limitations, surrogate and friendship models have Code of Professional Responsibility limitations. The Model Rules of Responsibility, Rule 1.2, prohibit the extreme power structure of a “hired gun surrogate” model by requiring that a lawyer “consult with the client as to the means by which [client objectives] are to be pursued.” Rule 1.4 also states that a lawyer:
(a) shall keep a client reasonably informed about the status of a matter … and (b) shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”
Of course, if the client does not want to know, who is to complain? But if the client changes his or her mind, then the Model Rules become a sword against the lawyer, a risk of which the surrogate lawyer should be particularly wary.
Regarding the friendship model, the lawyer’s concern about gathering salient facts and getting input from various other parties in relationships with the client should not overstep client confidentiality requirements. Model Rule 1.6 obligates the lawyer to protect the confidences of the client. Comment 1 to Model Rule 1.3 also limits the friendship model:
A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and may take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor. A lawyer should act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.
In other words, the merge must not produce lukewarm, half-hearted representation, nor be a heavy-handed attempt by the lawyer to impose his morality on the client.
Having said this, the friendship model can be an attractive alternative for some clients.
The new or burgeoning business client is a prime example. Many of these clients have long been interested in having more from their lawyer than just technical legal advice. They want them to be a partner; to care whether the business succeeds in the long term; to understand what is really important to the client, which is often more than short term, bottom line profits.A subset of the business lawyer setting, where friendship seems to be in vogue, is the “in-house” counsel, or the lawyer who heads a corporate acquisition team. These lawyers must not only be able to advocate the client’s interests, but understand them well enough to move in a strong way when the interests of the client demand creative, responsive action. The friend analogy, where deep trust has been built on the basis of understanding and moral discussion, explains why the lawyer can act so forcefully and accurately for the client.
Interestingly enough, the same is true of a good domestic relations lawyer. Some clients want, first and foremost, a trusting relationship. They want someone who understands not only what they think, but how they feel. They need both emotional support and tough love. They need to be “bucked up” when they are momentarily depressed, and brought into touch with reality when they are feeling unrealistically powerful and in control. In other words, they would rather have a friend who made the occasional mistake, than the dispassionate, disinterested analysis of a hired gun.
In summary, the “friendship model” should be explored in a number of areas. First, the lawyer should consider the “friendship model” wherever the lawyer is asked to deal with individuals who are, or will be, in long-term relationships with each other. In the commercial arena, for example, lawyers may be asked to be lawyers for “the deal,” in the drafting of corporate documents for small closely held corporations, or in drafting partnership agreements that could affect the parties for years to come.
These situations always seem to put the lawyer in an impossible situation. They continually need to trade short-term risk and gain for long-term gain, and building relationships of trust. The ethic of care, and the friendship model, can structure the lawyer’s role, and provide guidance about what to do and say. Similarly, the lawyer should consider the “friendship model” where he acts as trustee for trusts with multiple beneficiaries. Family legal problems, problems with the placement and care of children, situations involving bioethical issues, and those involving the elderly also seem to be potentially useful.On the other hand, the friendship model is probably not useful for problems between strangers, where the concept of the web of relatedness doesn’t seem to fit. For example, questions of torts, products liability, and crimes between strangers seem less promising. When impartial issues of justice and fairness are the heart of the conflict, the rights-based model may be more appropriate and thus preferable. But where the situation involves individuals in strong relationships with each other, it only makes sense that early involvement of these others is crucial, both to gathering accurate information and understanding what care demands of the people involved. It requires the lawyer to break the bounds of rights analysis, and seek particularized, human solutions that better fit the people involved.