4.1 The Client-Centered Approach
The client-centered approach assumes that the client sets the objectives or outcomes of the client’s situation. It is based in moral philosophy that grounds the professional relationship between lawyer and client in the principle of autonomy.
Autonomy of the individual is good because it promotes freedom, and freedom promotes experimentation and competition, and everyone is better off for it.Under the client-centered approach, the lawyer’s investigation of the situation is for the client’s benefit, and it is unprofessional for the lawyer to manipulate either the factual or legal investigation, and presentation to the client to serve some societal or personal understanding of what the outcome should be. 4.1.1 Preliminary Observations—The Conflict in the Relationship
Consider the traditional view of the relationship between an attorney and client. Many clients take the attitude that it is “their” lawsuit and their business; that they ought to be in control. In order to be in control, clients need information that will allow them to reach informed decisions. Their need is for the lawyer to be an information retriever: “Find out what happened, and then analyze it and tell me what risks there are to my options.” Even if the client has already done something illegal, he wants to be informed in order to decide how best to proceed. The client is not looking for moral approval from the lawyer. The client is looking for legal information about his options.
How should the lawyer take control of the situation when he has varying degrees of understanding what has happened? Even once the lawyer knows his legal theory, factual theory, and theme, how does he inform the client about the persuasiveness of their theory or theme, when its persuasiveness is in substantial doubt, or it depends to a great extent on the idiosyncrasies of the judge, jury, mediator, and negotiation opponent? Even where the lawyer knows enough about what happened, and what the law is, there is still a foundational conflict of interest.
If the client has a need and right to control the choices that will have lingering effects on the life of his business, and if he has a right to run his business the way he sees fit, does the lawyer become an accessory to an illegal act where the client so chooses?Herein lies the problem. Does the client have the right to control what risks he is willing to take, regardless of whether the law says he can take it? For example, what if Eleanor Addington, Homestead’s chief financial officer said, “I admit Hirp explained to me that termites were not covered, but his notes don’t back him up and I’ll take my chances that in the end, insurance is for coverage. I want to sue.”
4.1.1.1 Client Autonomy
Does client autonomy extend that far?
Taking this extreme idea, the client who is willing to engage in illegality, or at least walk over the line between truth and falsity to win, strongly demonstrates the conflict of interest that may exist between lawyer and client. Understanding this conflict should also shed light on the lesser, more usual, conflict between the lawyer’s personal values and the non-illegal values of the client.
Before answering this question, it is necessary for practitioners to understand what might motivate the client to take this common, yet extreme, autonomy position. Many lawyers report that their clients pressure them to maximize returns at the worst possible time. For example, during deposition prep, or just before trial, clients will (and do) ask, “Who will know? Do we have to tell them? What if they don’t ask? It’s my life, and I’ll decide.”
Obviously, some of these clients may be responding to the panic and uncertainty of the moment. They are not necessarily thinking clearly and usefully about what is the right thing to do. They are running scared, and their fear must be dealt with by their attorney. Others are cold and calculating. They believe that litigation is a tool to get what they want and truth has little to do with it. Some take an amoral position to following the law.
The law, or speaking the truth, is only one alternative that has no particular significance if breaking the law or lying would be more productive of the client’s interests.In addition, modern discovery rules may encourage clients to see litigation as a game. The discovery rules do not require that the sides volunteer their own weaknesses. The obligation is on the opposing lawyer to ask the right question or make the right discovery request. It is very easy for the client to get the message that litigation has little to do with what really happened, and instead has to do with “what is the best story we can tell and get away with it?” The client may rationalize that the other side must be hiding much because of all that he is hiding. The objections, motions, and tactics the client sees from the lawyers during the discovery process itself may help produce the extreme reaction.
Even when the client hasn’t expressed the extreme position, the lawyer may assume, because of other pressures, that the client takes this position. The lawyer may feel pressure to do the spectacular, or magically make the bad fact, and bad case, go away. The pressure to maximize economic return to the client may initially come from the lawyer’s altruistic desires to rescue their “poor client.” In addition, winning is the most tangible measure of success for the litigator, and as the saying goes, “Winning is not everything, it is the only thing.” If the lawyer wants to stand out above the crowd, even “winning” a majority of his cases may not be enough. After all, any lawyer can win a case where they have the facts. The really good lawyer wins when no one else could. To some lawyers, the best compliment that you can pay them is to say, “If I’m ever in real trouble, I want you on my side.” The implication is the best lawyers get you off, even when you did it.
In any event, the lawyer’s pressure to win may lead to false assumptions about the client’s wishes and desires. This is one of the most common complaints about litigators: They assume that the client wants a no-holds-barred fight.
If the fight ends up keeping clients from resolving their differences amicably and quickly, or once the client gets the bill and nets out the expenses, he may think more critically of the litigation tactics used and complain about his attorney, and all attorneys. In the language of economics, the client may have suddenly become “risk adverse.” In non-economic terms, the client may simply view the risks to their other relationships as more important than strictly the economic return.On the other hand, there are significant market pressures that do legitimately drive the litigator to push for one-sided, win-at-all-cost results. If a client settles a case, then finds out that he could have gotten more, or that other lawyers did better for a client in a similar situation, the litigator will often hear about it from the client. Personal injury lawyers are familiar with clients who compare what the lawyer says they should settle for with what the newspaper said someone else got. Also, the particular client may have high expectations. Some clients are “risk preferrors.” They may be willing to risk more than is “rational” for a shot at the large gain. In other words, assuming a “zealous” representation posture may be partly driven by experience with a particular client’s expectations and desires.
Many clients prefer to fight hard in the marketplace with all the tools at their disposal, or if defendants, to fight all comers in order to discourage others from filing suit. Their position may make sense if they are seeking to maximize their economic gain over the long run. To some clients, their legal position is a matter of judging the risks of getting caught in a particular mistake, as compared with the long-term costs of appearing weak.
The point is that the forces acting on the lawyer and the client during the counseling session are complex and partly inconsistent. In addition, when dealing with an institutional client, it could be that CEO wants one thing, the founder and chairman of the board another, and the shareholders, another. If the litigator assumes a particular motivation drives “the client,” and gets it wrong, the client is very unhappy and feels that his autonomy and dignity have been violated. The real danger in counseling the client about what risks the institution ought to take is in failure to communicate clearly about what motivates the client, and describe comprehensively the potential consequences of the client’s proposed behavior.
How can the litigator balance client autonomy and the need for attorney control, act ethically, and please the client?