What the Lawyer Decides in a Case
In broad terms, the decisions a lawyer makes in a case are related to strategy or tactics, or technical questions related to procedure. These decisions are the lawyer’s because they usually do not “materially affect” the client’s interests. See Model Rule 1.2.
Tactical or strategic decisions may involve the following:
- the choice of motions;
- the scope of discovery;
- which witnesses to call;
- the substance of the direct and cross-examination.
Importantly, a client has the right to discuss with his lawyer the strategy that will be employed in pursuing objectives. However, according to the Model Rules, lawyers are “not bound to press for every advantage that might be realized for a client.”
EXAMPLE: Say the opposing attorney contacts you, the plaintiff’s counsel, requesting a filing extension. You discuss this with your client, who says “No way! This is my money and my life we’re talking about! I’ll take advantage of every mistake they make!” So you’re inclined to deny the extension because of your client’s wishes.
The ethical rules, however, hold that if the strategic decision would not materially prejudice the rights of your client, as in this situation, you do not have to abide by your client’s wishes. Generally, on issues of court procedures, granting continuances and extensions, and waivers of procedural formalities, the lawyer has discretion.
A lawyer is obligated according to the rules of professional responsibility to exercise independent professional judgment and to render candid advice. In exercising independent professional judgment, the lawyer should not allow others to unduly influence and sway her opinions in a way that would compromise the quality of the representation.
In providing advice, the lawyer may refer not only to the law, but to moral, economic, social, and political considerations that might impact on a client’s situation.
EXAMPLE: A company has a security interest in an elderly couple’s only asset, a 45-year-old small business. The couple defaults on their monthly payments to the company, which is thus entitled to repossess their collateral, the business and sell or auction off the assets.The couple is prominent in the state for their undying generosity – they have been feted at numerous functions by the governor, congressmen, senators, and enjoy great publicity.
As a lawyer for the company, it could be dangerous to arouse the ire of the public, considering its adoration for the couple. Social considerations might necessitate a negotiation in lieu of foreclosure, even though the law is clear on your company’s right to take the business due to the terms of the security agreement.
Lawyer Decisions and Illegal Conduct
From the outset of the case, the lawyer and client should determine the “scope” of the representation. They will set forth the goals of the representation. Some goals are short-term, such as closing on a piece of property, and sometimes they are long-term, as in providing ongoing advice for a corporation.
Usually when drafting a fee agreement for a client, a lawyer will set forth in writing the reason for the representation. This protects the lawyer and the client in the event of a dispute about either party’s obligations.
Importantly, the lawyer is responsible for informing the client of the applicable laws, and operating within the limits of, the laws. The client has a right to discuss with the lawyer how they will pursue their objectives. However, the lawyer does not have to follow through with the client’s requests if the means by which the client wants to achieve his objectives are illegal. In fact, the lawyer is under an ethical obligation not to assist a client in conduct that the lawyer knows is criminal or fraudulent.
EXAMPLE: Arthur Anders tells his lawyer to shred the printouts he just sent the lawyer, out of fear they will be discovered in upcoming litigation. Of course by now you know that the lawyer may not assist his client in conduct that the lawyer knows is criminal or fraudulent.
This is an easily understandable ethical obligation, but it is one that time and again is violated by attorneys who fear they will lose their job if they do not follow through. Surely some lucid reflection on the consequences of being caught will help the attorney act ethically.
A lawyer should explain to a client that the client’s conduct would be unlawful. The lawyer must not recommend the illegal conduct, and may never instruct the client on how to break the law.
If a lawyer determines that his client expects assistance in violating a law or a rule of ethics, the lawyer must explain to the client why he cannot provide assistance. If the client insists on help with an illegal course of conduct, the lawyer MUST withdraw. We will dig further into the rules of withdrawal later in the course.
Sometimes lawyers find their clients’ goals to be unpalatable. This does not mean that the lawyer may not take on the case. When a lawyer represents a client in a matter, this does not imply that the lawyer himself endorses the client’s positions. Of course, sometimes it’s more than just antipathy towards a client’s goals that prevent a lawyer from wanting to perform certain tasks. It may be due to the lawyer’s lack of time or lack of competence in a certain field of the law. In such cases, the lawyer would be ethically obligated to turn down the case.
A lawyer is entitled to limit the objectives of representation, provided he consults with the client from the outset. What is most important is that this is all laid out on the table from the start with the client. Both the lawyer and the client must understand the scope of the representation when pursuing their goals together.