12.03. Lawyer as an Advisor [Rule 2.1]

A lawyer wears a lot of different hats in representing a client.  The role that is portrayed in television shows and movies is the lawyer as advocate – appearing in court and fighting for a client’s rights.  However, lawyers are also critical for what they do behind the scenes – providing advice and guidance on how a client should respond to circumstances they find themselves.  In this role, the lawyer serves as an advisor. 

As an advisor, the lawyer has an obligation to “exercise independent professional judgement and render candid advice.”  This means first that the lawyer must be able to fully dedicated to the interests of his client and not by other concerns.  A lawyer must be free to advise a client without a conflict of interest.  Today, the obligation of independence is handled largely through separate conflict of interest rules which ensure that a lawyer is not torn between competing obligations.  Therefore, this separate obligation requiring independence is largely redundant, but still a good reminder of a lawyer’s duty of loyalty to her client.

In advising a client, a lawyer has an obligation to be honest and straightforward with the client – even if information is not something the client wants to hear.  As a Comment puts it, a lawyer may try to keep up a client’s morale and “may put advice in as acceptable a form as honesty permits” but “should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.”[1]

Lawyers often serve as much as a therapist as a narrow legal advisor.  Certainly, some clients (especially sophisticated clients) come to a lawyer with a particular legal issue and want to be informed of their legal rights and responsibilities and nothing more.  As long as the lawyer feels the client is experienced enough just to provide black-and-white legal advice the lawyer may do so.[2]  More often, however, you are going to find that a client is coming to you not just to know whether they have a claim or defense, but also the consequences of asserting a claim.  It is in this situation where a lawyer should consider more than just the purely legalistic aspects of a claim.

A lawyer should fully advise a client about the consequence of pursuing a claim.  This would include the cost and time required for the claim, but more than that.  The lawyer should discuss the impact that the action will have on third-parties (family members or friends).  It could also include larger moral issues as well.[3]  Perhaps a domestic relations lawyer discusses the consequence on the children of filing for a change in custody even if the client has a legal claim for a change.  Perhaps a lawyer tells a business client that, while he has a potential claim against a customer, the client should consider whether creating a breach in the relationship is worth it in the long run.  Elihu Root once said: “About half the practice of a decent lawyer consists of telling would-be clients that they are damned fools and should stop.”[4] 

Advising a client may also include referral to someone in another profession.  A business client may be referred to an accountant or a domestic client may be referred to a psychologist.  A lawyer should not hesitate to advise clients to seek out these professionals when necessary, but should always be willing to advise a client of their legal rights taking into consideration the opinion of other professionals – especially when they provide conflicting views.[5]

Finally, a lawyer is not a roving advisor.  There is no ethical obligation to give advice to a client when the client does not ask for it.  However, “when a lawyer knows that a client proposes a course of action that is likely to result in substantial adverse legal consequences to the client…” the lawyer’s obligation to communicate with the client (Rule 1.4) may require that the lawyer advise the client of the situation if it is within the scope of the lawyer’s representation.[6]  In other words, a company’s tax lawyer is not obligated to advise a client about the questionable validity of the covenant not to compete provisions the company uses with clients that he reads while preparing a tax opinion, whereas the lawyer would be obligated to unilaterally advise the corporation if he read a quote in the newspaper by the company CEO indicating that the company may be committing tax fraud.

[1] ABA Rule 2.1, Comment [1].

[2] ABA Rule 2.1, Comment [3].

[3] ABA Rule 2.1, Comment [3].

[4] Philip C. Jessup, Elihu Root (1938).

[5] ABA Rule 2.1, Comment [4].

[6] ABA Rule 2.1, Comment [5].