4.7 Lawyer as Surrogate Decision Maker
A second model for lawyer-client decision making is for the client to simply delegate to the lawyer the power to make decisions for him, “in his best interests.” Consider the very reasonable position that clients simply don’t want to know or worry about the litigation.
“You, the lawyer, are getting paid a lot of money to handle my legal matters. I have other things to worry about. You make the decisions that arise out of the legal issues and just keep me informed as we go along. I’ll pay you to do my worrying, and I’ll get some sleep tonight.”This kind of relationship is not uncommon. It can arise in the federal regulatory area, where clients simply want the government to interfere with their business as little as possible. They hire lawyers who will fight to get the EPA, SEC, or FTC off their backs. The client has been accused of violating some regulation and the client wants the lawyer to make it go away.
The surrogate model can affect, dramatically, what information you present the client and whether one of the lawyer’s legitimate concerns is protecting the client from knowing too much. This kind of relationship, however, runs some real risks. Its exact nature needs to be well documented. Even then, when particular issues arise that strike at the very heart of the client’s needs, the lawyer must be careful that he is up to date on the client’s best interests. To the extent that their interests in the marketplace may change, or the client’s method and persona may have to vary, depending on the particular person they are dealing with, the lawyer runs the risk of getting away from the delegated authority they presume they have.
Other risks in this kind of relationship include:
1. Accentuating the game of hiding information. Clients may also see it is to their advantage to have an advocate who does not know what has really gone on.
Such knowledge of the “bad” facts or sloppy management may affect the lawyer’s willingness to fight vigorously for the client. Not telling all to the lawyers also protects the lawyers from knowing that they are lying when they are asked questions by the government about what the client knows, or is doing, or has done. These situations are analogous to the criminal defense lawyer who starts off his interview with his client by saying, “I don’t want to know what happened, I just want to know what story you want me to tell.”2. May make it difficult to investigate internally. Many lawyers who are treated as surrogate warriors (like the old English Barrister model, where the lawyer has little direct contact with the client, but are fed information they need about the case through a solicitor, on a need to know basis) report that they have a hard time getting information from the client about who knows what and when they knew it. Their relationship with in-house counsel is crucial. In-house counsel feeds the litigator what they need, and can closely control the lawyer’s access to information.
3. Lawyer may be seen as a warrior who fights more for self than for the client. Again, there is logic to the delegation/surrogate model that comes from basic contract law and models of fiduciary relationships that exist when any officer acts on behalf of an institution. The client might think that the client is delegate the fighting job to the litigator. The client could rightfully believe that he gets wise counsel from in-house counsel. The CEO may have also done the business calculation and determined that it is better to fight than build relationships. The management may believe that it is always better to fight aggressively in “these kinds of cases” so that they have a policy in place that does not need to be rethought each time they are involved in litigation. Yet the unintended effect on the lawyer-client relationship can be profound. The lawyer can believe that their continued success with the client is to win at all costs.
He may not have been privy to the thinking behind the policy to fight and therefore assume that their clients are amoral at best, and affirmatively a sociopath, at worst. This can lead the partner or associate to not understand or respect the client’s thinking, which can in turn lead to an undue focus on winning. After a while, it may be hard to get sufficient meaning and reward from “criminal defense” work. The hired gun mentality can take over. Economic reward can become the sole reward for the lawyer, and sooner or later, the lawyer realizes that economic reward is never an end in itself. It seldom motivates or is sufficient to the lawyer in the long term.The lawyer can be affected in another way. The lawyer may in turn start giving the client limited options with limited information. The lawyer may become a “Yes man,” because even where he’s wrong, the lawyer wins by increasing control. Or the lawyer becomes unreasonably risk adverse in order to show how much he’s protecting the client. In these ways the lawyer can take the delegation of authority and use it to his or her own economic advantage.
These unintended long term effects on the lawyer and client have to be watched carefully and continually monitored. It may be why there is substantial dissatisfaction among lawyers in what it is that they do. It may also be why the Model Rules require the lawyer to keep the client reasonably informed about the means and objectives of the lawsuit.
These are not hypothetical matters. Federal Judge Ann Williams reports her repeated experience with parties who have stopped listening to their lawyers. The attitude she sees from the corporate party, too often, is a “not on my watch” attitude. In others words, “I pay you lawyers a lot of money to make sure that I don’t look bad. Make the litigation go away so I won’t get in trouble with the board.” Often, then, the Judge Williams reported she was forced to play the role of the legal advisor. She must be the one who says, “You have real exposure here, and you need to go to your board and tell them so.” Somehow the client hasn’t been able to hear this advice from his lawyer, either because the lawyer has been unwilling to be the bearer of bad news, or because the management simply does not see their lawyer as being an unbiased advice giver.
If the lawyer becomes too much of a lone ranger, the lawyer may not have a sufficient enough relationship with the client to be heard when independent advise needs to be given.