Evil counsel travels fast.—Sophocles (497–406/5 B.C.)
The client has a problem and comes to the lawyer, rather than the pastor, economist, or psychologist, presumably because the problem has a legal component to it. The question for the lawyer is what role the lawyer plays in helping the client solve his or her problem.
The lawyer has a hand in designing a legal strategy the best serves the client’s goals. As a preliminary matter, a lawyer needs to be clear about the lawyer’s role with any client in helping him in decision making. How can the lawyer best help the client think strategically about where they are going and how best to achieve the client’s goals?There are a number of disciplines that can inform the client’s involvement in forming legal strategy. Moral Philosophy, ethics, and psychology each contribute frameworks for helping to develop a strategy. In particular, moral philosophy provides a number of ethical models to assist the lawyer.1
Client-Centered Model: The first and most prominent model is the client-centered model and is one based on client autonomy. It is the model imbedded in the American adversary system and the lawyer rules of professional responsibility.
Delegation Model: A second model, a delegation model, is a variation of the first, but focuses on the delegation that can occur when a client asks a lawyer to be the client’s surrogate in handling the client’s legal problem. It is based on agency, or fiduciary contract law and is partially grounded in informed consent.
Social Psychology: A third discipline that helps to create a third model, the friendship model of lawyer-client decision making, is social psychology. Psychology, along with moral philosophy, explores the role that wisdom and care might play in the interplay between lawyer and client as they shape their legal strategy.
These three models are based on different paradigms, but are nonetheless, overlapping models that lawyers use in helping to strategize with their clients. Each has its own strengths and weaknesses. They are particularly useful to understanding lawyer counseling with an institutional or corporate client. These types of clients present their own unique challenges. Borrowing again, from moral philosophy, we use a principled approach to advising these clients. Such an approach uses expertise gained through experience in counseling institutions who have been in legal difficulties and from these experiences derives a set of principles or factors to help the lawyer protect the institution from the lawyer’s own biases in forming strategy, and also guide against the client representative biases that can also skew the strategy. In terms of moral philosophy this model takes on the form of a rule utilitarian ethic. It lays out a set of rules and principles to guide the lawyer and institutional client in forming their legal strategy.
This chapter will describe each of the four models in more detail below and discuss their limitations.