The lawyer as advisor
by
Martin A. Cole, First Assistant Director
Minnesota Office of Lawyers Professional Responsibility
Reprinted
from Minnesota Lawyer (November 7,
2005)
The Preamble to the Minnesota Rules of Professional
Conduct (MRPC) identifies four main representational functions performed by
attorneys. Most people understand
that lawyers act as advocates for their clients’ interests and
negotiators on their behalf, and indeed these are two of the major roles set
out in the preamble.
Lawyers also act as evaluators of their client’s
legal affairs. The fourth function
that lawyers are expected to perform is that of being a counselor or advisor to
their clients. Often overlooked in
the MRPC is Rule 2.1, which deals with this fourth function.
Client counselor
Just what does it mean to be an advisor consistent
with the ethics rules? Rule 2.1
provides that “[i]n representing a client, a lawyer shall exercise
independent professional judgment and render candid advice. In rendering advice, a lawyer may refer
not only to the law but to other considerations such as moral, economic, social
and political factors that may be relevant to the client’s
situation.” Of special note
is that the role of advisor is not in fact mandatory (despite the term
“shall”), but once advice is requested and/or given, then
independent and candid advice is mandatory.
The unofficial comment to Rule 2.1 offers substantial
guidance on the scope of this rule.
Among the “nuggets” of wisdom in the comment are the
following:
• In
general, a lawyer is not expected to give advice until asked by the client;
• A
lawyer ordinarily has no duty to initiate investigation of a client’s
affairs or give advice that the client has indicated is unwanted;
• A
lawyer should not be deterred from giving candid advice by the prospect that
the advice will be unpalatable to the client;
• Advice
couched in narrow legal terms may be of little value to a client;
• When
a request is made by a client inexperienced in legal matters, the
lawyer’s responsibility as advisor may include indicating that more may
be involved than strictly legal considerations;
• When
a matter is likely to involve litigation, it may be necessary to inform the
client of forms of dispute resolution that might constitute reasonable
alternatives to litigation; and
• Where
consultation with a professional in another field is something a competent
lawyer would recommend, the lawyer should make such a recommendation. At the same time, a lawyer’s
advice at its best often consists of recommending a course of action in the
face of conflicting recommendations of experts.
The lawyer’s ability to provide independent
legal advice is sufficiently important to require protection elsewhere in the
rules. Rule 1.8(f)(2) of the MRPC,
for example, allows a person other than the client to pay for the
representation, but only if there is “no interference with the
lawyer’s independence of professional judgment.”
There are some limitations in the rules on an
attorney’s ability to provide advice. Principally, Rule 1.2 states that 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.”
The Restatement Third, The Law Governing Lawyers, sec.
94, defines “counseling” for purposes of this rule as meaning to
provide advice to the client about the legality of contemplated activities with
the intent of facilitating or encouraging the client’s action. “Assisting” refers to
providing services, with a similar intent, such as preparing documents,
drafting correspondence, negotiating with nonclients or contacting government
agencies.
Complaints examined
The Director’s Office receives very few
complaints dealing with a lawyer as advisor that result in discipline or even
investigation. Criminal defendants
too often complain that their attorney wrongly advised them to plead
guilty. Such complaints are usually
summarily dismissed as being ineffective assistance of counsel claims and the
complainant is referred to his post-conviction remedies; similar complaints
from non-criminal clients about advice received are dismissed as being
malpractice-type complaints better left to the civil courts. Likewise, complaints from a party
(frequently in marital dissolution matters) that the opposing counsel is giving
her client bad advice (perhaps wisely to not agree to waive child support or
the like) will not get much attention in our office.
Prosecutors or police officers have occasionally
complained that a defense lawyer illegally advised a person arrested for
possible DWI to refuse to permit a blood or breathalyzer test, which is itself
a crime. (See Minn. Stat.
sec. 169A.20, subd. 3.
Consistent with Rule 1.2, a lawyer cannot advise a client to commit a
crime). The lawyer may, however,
discuss the implications of refusing the test. Of course, testimony from the affected
clients would be necessary to prove what the lawyer told them, and they were
almost always intoxicated during the conversation, making proof almost
impossible even if the allegation was in fact true.
While all four functions of being a lawyer are
important, the role of counselor or advisor is one that clients sometimes
forget or don’t expect, but that lawyers should competently and
fearlessly fulfill.