4.2 Model Code and Model Rules

While the Model is clear under Canon 7 regarding the lawyer’s obligation to represent the client’s objectives zealously, it left to the Ethical Considerations the question of who controls what.

In certain areas of legal representation not affecting the merits of the cause or substantially prejudicing the rights of a client, a lawyer is entitled to make decisions on his own. But otherwise, the authority to make decisions is exclusively that of the client, and if made within the framework of the law, such decisions are binding on his lawyer.

The same Ethical Consideration describes settlement offers, affirmative defenses, and pleas as examples of what the client controls. While not in the form of a Disciplinary Rule, the Code places the ultimate decision making power with the client. The Code’s position is consistent with general agency principles that the agent must act in the best interests of the principal. Presumably the best interests of the principal are best determined by the principal herself.

The Model Rules clear up any potential ambiguity over whether the Ethical Consideration was meant to be mandatory with Rule 1.2 (a), which provides a new twist:

(a) A Lawyer shall abide by a client’s decisions concerning the objectives of representation, subject to paragraphs (c), (d) and (e) [(c) deals with the lawyer’s ability to limit client’s objectives after consent with consultation; (d) deals with the lawyer’s inability to consult with regard to criminal or fraudulent activity; (e) deals with the lawyer’s inability to assist the client with conduct in violation of rules of professional conduct or contrary to law] and shall consult with the client as to the means by which they are to be pursued. (Emphasis added.)

Model Rule 1.2 is remarkable for the obligation it places on the lawyer with regard to counseling, including selecting counseling means to be pursued.

Before getting to the means issue in litigation, the conflict within Model Rule 1.2 itself must be discussed. Model Rule 1.2 (d) provides the countervailing pressure:

A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client, and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

One of the most difficult aspects of 1.2(d) is defining “counseling” or “assisting.” The lawyer is told that he can discuss the legal consequences of proposed courses of conduct, but that he can’t counsel or assist the illegal conduct. How can a lawyer provide the client information without assisting him to commit an illegal act?

Comment 2 to the Model Rule gives only this guidance:

A lawyer is required to give an honest opinion about the actual consequences that appear likely to result from a client’s conduct. The fact that a client uses advice in a course of action that is criminal or fraudulent does not, of itself, make a lawyer a party to the course of action. However, a lawyer may not knowingly assist a client in criminal or fraudulent conduct. There is a critical distinction between presenting an analysis of legal aspects of questionable conduct, and recommending the means by which a crime or fraud might be committed with impunity. (Emphasis added.)

Apply Comment 2 to Eleanor Addington’s situation. The lawyer might feel conflicted about whether to assist Homestead in its lawsuit against Manhattan. On the one hand, providing the client with an assessment of the chance of prevailing on the plain meaning of the contract surely seems necessary. Yet the lawyer may feel uncomfortable that by providing the information he is empowering the client.

While the comment tells the lawyer there is an important distinction between counseling and assisting, what exactly is it?

The issue for the lawyer is whether he must give the information that may increase the chances that his client will do the illegal thing. How does the lawyer make this decision? On the one hand, he can fall back on Binder’s distinction between consequences and alternatives, and give up to the client the freedom to choose the illegal and fraudulent choice. On the other hand, he can refuse to give the information if he feels strongly that the law ought to be obeyed. And there is a third alternative. The lawyer could give the information, but engage in counseling to explore the morality of the decision. If the lawyer and client don’t see eye to eye and the conflict would prohibit zealous representation by the lawyer, he can withdraw.

Under the second course of action, the lawyer insures that the client follows the law. The result is paramount to the lawyer. Consider, however, how the contemplated action may affect the consistency with which a lawyer decides not to give the client information that encourages illegality. Consider the often-given example of the client, a retail merchant, who is deciding whether to stay open on Sunday in violation of the county’s “blue laws.” The client wants to know what the fine amount is in order to determine whether to stay open on Sunday and risk the fine. In this instance, many lawyers opt for giving the information. If pressed, they admit that they favor doing away with the blue laws because it forces a particular religious observance on those who may not share the same religion.

The implication, however, is that the lawyer is making his decision with reference to whether he agrees with the law. Where the decision criterion is whether the lawyer agrees with the law, he is saying something about his view of the law itself, and morality, and ethics, for that matter. And it reveals how the lawyer’s view of different types of laws can lead to a willingness to subvert the law. The lawyer appeals to some higher law (whether an interpretation of the constitution, religious law, or natural law.) In any event, his view of the worth of the blue law is important to the resolution of one of lawyering’s most difficult questions: “How should the lawyer counsel the client about ethical and moral choices?” Tell the client, and leave it to the client.

Assuming for a moment that lawyers share a distrust for certain types of law, the question becomes why they don’t tell their clients about a general obligation to obey the law, and how law is necessary for orderly management of the community’s affairs. The consequence on society of disobeying the law is not discussed, presumably because it is a matter of personal morality. On the other hand, where the lawyer feels the law is important to society, the lawyer denies the client the ability to make the personal moral choice.

There are further reasons why the lawyer may choose only between telling and leaving it to the client, or not telling and keeping the client from making the decision. After all, how exactly does a lawyer counsel someone about morality? The whys and wherefores of moral counseling are often left undiscussed for two major reasons. First, morality, values, and religion are all believed to be matters of personal choice and personal freedom. Second, there may be no shared language for discussion of value choice.

Some lawyers, however, do try to talk about morality on a basic level. Most situations of ethics and morality can be examined at the level of whether the decision maker is likely to be caught or found out, and thereafter pay in some way for his choice.

To determine whether to do “moral counseling,” the lawyer must be clear on the nature of all counseling, whether legal, economic, psychological, or social. Once the lawyer has a clear model for other types of counseling, moral counseling shouldn’t be much different or more difficult. As we shall see, it is often a matter of knowing what questions to ask, and how to draw the client into examining their decision comprehensively.

Whether the information is the lawyer’s opinion (and should be kept to himself), or legal fact, is often beside the point. Where the lawyer and the client get out of step with each other is most often due to a conflict over values. The ethical dilemma is not trivial: it is most difficult where the lawyer’s and client’s fundamental values differ. The question is how do the lawyer and client communicate to each other about their different value systems?

The Model Rules and Code are clear that the client “owns” the lawsuit and the lawyer serves the client’s objectives. One viewpoint on the lawyer’s job requires the lawyer to be centered on the client’s problem, rather than on self gains. The lawyer is an aid in solving the problem, not the problem solver by himself. Under this view, the problem solver needs to be client-centered in order for the counseling to be truly professional.

The first step in client-centered counseling is getting information. In this regard, dividing the skills of interviewing and counseling is somewhat artificial. Before any counseling can be done, the lawyer needs to be aware of all the relevant facts and feelings of both the client and himself. In addition, counseling will often lead to further interviewing, and further interviewing will often necessitate new or modified counseling.

Assuming, however, that the lawyer has gathered all the legally relevant information, there comes a time in the relationship where the information gathering stops and the lawyer and client turn their attention to problem solving.

To offer one alternative only is to substantially reduce the chances that the client will be the chooser. By analogy to the informed consent issue in medical malpractice, a doctor may be liable for battery when an operation is performed without making the patient aware of her treatment options and their side effects. Similarly, when faced with a series of choices (i.e. trial, negotiation, arbitration, mediation, or “drop the lawsuit”), simply presenting one option, going to trial, for instance, doesn’t provide the client with the meaningful options to make an informed litigation decision.

Simply talking to the client in terms of options and alternatives, however, may not be ethically sufficient either. During the process of identifying options the lawyer may unconsciously take the decision away from the client. Imagine that the lawyer in a case involving a personal injury plaintiff leads off the counseling session as follows:

Now, Ms. Addington, we could negotiate or we could go and try for a preliminary injunction. If you negotiate, you could save yourself a whole lot of grief and expense, not to mention the unpredictability of a court’s decision about what and how to enjoin, and you will probably get close to what the court is likely to give you without all the expense of litigation. But if you want to litigate the case, I’m ready. It’s your choice.

Clearly, the lawyer favors settlement. But what is wrong with him giving his opinion? Isn’t that what the client is paying for? The problem is that in cases where the client, or client representative, may feel vulnerable, they may not understand what they are deciding. It’s in these situations where the lawyer should be particularly careful to make sure the client both understands his options and makes the choice. Otherwise, the client may be very unhappy with the results, and turn on the lawyer at a later date.

Imagine, for instance, that Ms. Addington really wants a chance to tell the judge and market what a great product Homestead produces. She’s got a litigation fund all ready built into her budget that covers her bills. What she wants is to make the defendants stop their behavior, and the market to learn of the decision, and she feels that litigation will bring about this result. Her true “values” conflict with the lawyer’s assumptions about what motivates her lawsuit. Money is of lesser importance to her than principle.

But if the client disagrees with the lawyer, why don’t they say so? The client may be intimidated, or may feel that the lawyer won’t really try hard if he disagrees. Maybe he doesn’t know they can disagree. Whatever the reason, the danger of the lawyer imposing his judgment on the client is significant.

Importantly, the danger can be easily avoided. With very little effort, the lawyer can make sure that the decision is the client’s own, and avoid making incorrect assumptions. What follows is a series of suggestions for keeping the decision with the client:

1. Describe to the client the agenda for the counseling session. By describing the lawyer’s role, the client will be less likely to read too much meaning into what the lawyer is saying. The lawyer can make this clear by saying, for instance:

Ms. Addington, I thought we could spend some time getting clear about where you want to head from here. My experience has been that if we can fully explore your options and the consequences of each option, then you will feel more comfortable with the way the problem is resolved. What I suggest is that you and I identify your options, and then we brainstorm about which option is the best one.

2. Identify the options, ask if the client sees any others, and ask the client to choose which one they want to talk about. For instance, the lawyer might say:

I see three options. We can proceed to a preliminary injunction, attempt some sort of negotiated solution, or perhaps find a mediator to help resolve the situation. Do you see any others? Okay, which one do you want to talk about?

By adopting the above as standard operating procedure, the lawyer can keep his own opinions from the client. Once the client accepts the fact he needs to make the decision, they can start to work at solving it. The client, however, may not buy the lawyer’s agenda. He may not have the time or interest for making the decision, and may (and often do) ask “Well, what do you think I ought to do?”

A word of caution is important here. Before the lawyer jumps in and takes over the decision, he should recognize what motivates the question. Many people hate to make tough decisions. They would just as soon have someone else to blame. Or they don’t like the stress of making a decision, or how they feel when they have to make one.

On the other hand, they may misunderstand, and perceive that the lawyer is trying to sell them something. They want information, and then they want to go back to the office, where they can make the decision in private, or with business associates and friends. In this case, the lawyer needs to be their partner, friend, and counselor, to whom they turn when they make tough decisions. The lawyer has both information and experience with helping people reach decisions. He is ideal to pick up pieces of misinformation, calm the over-emotional response, and help the client to look at the situation comprehensively.

Some clients, though fewer than most lawyers assume, are in control, for the most part, of their litigation problem and only want legal information. They only want the lawyer’s frank input, and they will go away and make the decision on their own. Some like a good adversarial give-and-take to help them clarify their thinking. They want the lawyer to take a position against which they can argue. After the “fight” with the lawyer over what should be done, the client is more ready to make the decision. Once again, this kind of client is rare.

In any event, when the client does want the lawyer’s opinion, it is important to find out why. Different levels of sophistication, behavioral preferences for making decisions, or different client values require different responses from the lawyer. If the client simply wants to put the decision off on the lawyer without taking ownership of their problem, then the lawyer may want to “make” the client work some first, before giving their opinion. If the client is strong willed, and simply wants the lawyer’s opinion in order to judge the lawyer’s bias in the information that will follow, then giving the opinion will not interfere with taking ownership of the decision.

One option for dealing with the client’s expectation is for the lawyer to give his opinion, but explain how it may be biased. This option falls in the general advice category “if in doubt, honesty isn’t a bad place to start.” For instance, the lawyer might say:

Ms. Addington, if it were my problem, I’d first try to get a realistic estimate of the cost of doing nothing, ignoring this problem. I would want to know all the adverse effects on the business, and the people involved in the business, if management just walks away. Any effort to resolve this problem, whether by settlement or through the legal system, will take time and effort of key managers and investment dollars that would otherwise be devoted to the business. After I figured that out, I would try to reach a settlement. But you need to understand that I’m looking at this partly from time savings versus dollar return to me. I’m wondering whether the increased hearing preparation time will produce a sufficiently greater return at the hearing than what we can get now. On the other hand, only you know what you are trying to get out of this. So let’s consider my opinion for what it is, just my opinion, and talk about what is likely to happen, assuming you pick various alternatives. After all, it’s your decision to live with, not mine, and my job is to work as hard as I can to see you get what you want.

3. Identify areas where the client has superior information about the effects of the various decisions. Binder, Bergman, and Price, in their book Lawyer as Counselor, suggest that lawyers look for categories of information about which the client has superior information.³ While the lawyer has the superior information base about the law and the legal setting, the client usually has superior knowledge about the economic, social, psychological, and moral/religious effects of the decision.

Binder et al. suggest a prepared chart for that purpose with alternatives running along the side, and legal, economic, and social/other factors running across the top. Whether you develop, chart, and write down things that the client says in the appropriate box, or simply ensure that each factor is discussed, is a matter of interviewing preference. What is essential is for the lawyer to see that the economic impact of the decision is something about which the client usually has much better information.