4.6 Taking Ethical Control of The Case in A Client-Centered Approach

While we have discussed certain philosophical arguments about the difficulties of counseling a client who wants to do something illegal, the lawyer must understand the particular risks of counseling or assisting a client to commit perjury.

If the client’s values have been clarified to the extent that they express a willingness to do whatever is necessary to win, then the lawyer ought to have no hesitation in taking control. The lawyer doesn’t need to be angry or “holier than thou,” just clear. He can start with self-interest appeals, move to altruistic appeals, and finally make threats, as ways of persuading the client. The lawyer might say:

Ms. Addington, are you saying that you would be willing to lie or ask your accountant to lie to win the lawsuit? Ms. Addington, I need to be clear with you about this from here on out. You don’t want to commit perjury. Not only is it my experience that the court will know, and that the other side will make you pay during their cross-examination, but you risk a criminal prosecution. You risk your reputation, and your good standing in the community.

[If this doesn’t bring ready agreement from the client]:

In addition, Ms. Addington, you surely don’t want to unfairly deny to Best Homes an ability to compete in the market place.

[If this doesn’t do it]

Ms. Addington, I risk losing my license if I put either of you on the stand when I know you are going to lie.

The Model Rules and Code each provide that the lawyer must take ethical control of the litigation to protect the integrity of the process. Model Rule 3.4 (b) reads:

A lawyer shall not:

(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to witness that is prohibited by law;

DR 7-102 (A)(6) reads,

(6) a lawyer shall not participate in the creation or preservation of evidence when he knows or it is obvious that the evidence is false.

The Code and Model Rules raise the obligation to withdraw before suborning perjury.

The problem is that lawsuits have bad facts in them. Each side has them. That is often why there is a lawsuit in the first place. The lawyer’s job is to characterize and argue zealously about the meaning of their client’s facts. But they must take control and draw the line at the creation of new facts. 4.6.1 The Client May Want More from The Lawyer

In addition, there is a greater and greater cry from the client that the lawyer be more than just a neutral information provider and warrior for the client.⁴ The client may want the lawyer to actually care about whether the client is doing the “right” thing. The client may want “wisdom” from the lawyer. After all, the lawyer presumably has experience with clients who have been in similar situations. How did these clients feel after their suits? Were these clients’ victories hollow? Did they win the battle but lose the war? Did they win the lawsuit but lose market share? Did they win short-term market share, but lose customer loyalty? In the case of Ms. Addington, did they prosecute successfully the lawsuit only to raise unrealistic expectations in their customers?

Many clients want their lawyers to care about these questions.

1. Interviewing and Counseling are necessary to determine the client’s goals. Listening Skills are also important as a foundation to the problem solving that follows.

· What are the salient factual issues?

· What losses have been suffered and what caused these losses?

· What is the market for Homestead’s Homes?

· What is the market for Best’s Homes?

· What are Eleanor Addington’s goals and ambitions?

· What is Homestead’s mission statement and strategic plan?

· What are the Steadman’s goals and ambitions?

· What are the key figures in the business? Suppliers, marketers, investors?

2. Identify alternatives

· Litigation for injunction

· Litigation for law suit

· Mediation

· Negotiation

· Client to client

· Lawyer to lawyer

3. Predicting consequences

· Costs to the business

· Time of key personnel

· Legal fees

· Market forces

· social

· psychological

One practical way to help the lawyer implement a client-centered approach in a client counseling session is for the lawyer to prepare a counseling chart. A counseling chart can help the lawyer show the client where the client needs to give input, and where the tension lies in reaching a strategy. The chart can lay out the alternatives and consequences and provide space for client input on creative alternatives and client weighing of competing considerations to help clarify for the client the choices the client needs to make.

One example of client-centered counseling chart would look like the following: Counseling Chart for Homestead, Part I. (Homestead tells the lawyer that A-Best, a competitor is disparaging them in the market place by telling customers that Homestead’s housing is poorly made and termite infested. What strategy should be employed?)

Counseling Chart

This chart can help to get the client and lawyer, literally on the same page about what is to be done and why. It can also provide great information to help in the lawyer’s implementation of the client’s choices through the negotiation and mediation of the case.