“MY ATTORNEY ISN’T DOING WHAT I TELL HER TO DO – ISN’T SHE SUPPOSED TO BE WORKING FOR ME?” by Barbara J. Shah, EsquireLeave a Comment
The question of how an attorney goes about representing a client is not a simple one. On the issue of loyalty, there is no question; if the attorney cannot be trusted to look out for his or her client’s best interests, that is an attorney-client relationship that should no longer continue. The attorney owes the client the duty of absolute loyalty, and if there is a question of who the attorney owes loyalty to, the attorney should step aside. This includes situations where someone else other than the client is paying the bill; the attorney can and must focus on what is good for the actual client and cannot share information with or take instructions from anyone else, without the client’s express permission.
The issue generally presents itself in a different way, that is, the client lays out a course of action that they want to be followed or a legal position they want to take, to the attorney, and the attorney disagrees with the client’s request. Is an attorney required to do whatever the client instructs them to do? The simple and easy answer to the question is “no,” because the Rules of Professional Conduct adopted by the PA Supreme Court are binding on all attorneys licensed to practice law in PA, and these rules prohibit certain actions by an attorney which are considered to be prejudicial to the system of justice. We are not permitted to (individually or through others) present perjured testimony, file lawsuits which have no justification, or intimidate witnesses, to name just a few.
But beyond that easy answer regarding not taking actions prohibited by rules of conduct, is another answer which is much more difficult, and one which distills the essence of the attorney-client relationship. What are attorneys really supposed to do for their clients? One clue can be found in the rarely-used synonym for lawyer, “counselor.”
What a lawyer should be doing for his or her client is listening closely to all aspects of the problem which brought the client to the lawyer in the first place, and then giving a reasoned analysis of that client’s situation and the options available to the client for resolving the problem. These options must include an analysis of personal factors, including costs, which limit the options available to the client. If there are children involved, the lawyer must consider and discuss with the client the effect on the children of the exercise of each option available to the client. It means that the lawyer must have an extensive “toolbox.” There is no one-size-fits-all solution to every problem. Each client situation or problem has its own unique issues.
Then the lawyer must counsel the client on his or her recommendations for solutions of the client’s problem. Most people have heard the old saying, “a good lawyer knows the law; a great lawyer knows the judge.” I finally came to peace with that saying; for years I thought it meant that a lawyer should develop some sort of “buddy” relationship with a judge to seek to influence his or her decisions because of their personal relationship, and I thought it was a repugnant idea. However, I finally came to understand what the saying means. It doesn’t mean that there should be a personal relationship between the lawyer and the judge; it means that the lawyer needs to take time to understand how the judge thinks about a particular kind of case by being attentive in that judge’s courtroom, talking to the lawyer’s colleagues, and studying the judge’s decisions, to be able to predict, with some degree of certainty, how a judge will rule on a particular type of case or in a particular situation.
When counseling a client, if rulings of the judge of the case (or the general attitude of the local bench on a particular kind of case) are known to the lawyer, the lawyer must make it clear to the client that certain types of actions will not be tolerated by the court, or that certain actions are much more likely to achieve the result the client desires to attain. No lawyer should simply be a “mouthpiece” for the client without undertaking such an analysis of the potential outcomes for a course of action. If in the lawyer’s learned analysis a course of action the client is proposing would not achieve the desired result, it is the lawyer’s job to say “No.”
If the client doesn’t like what the lawyer says, he or she can move on and look for a lawyer who tells them what they want to hear. However, in the end the results will most likely leave the client unhappy. Lawyers, have courage! Clients, be smart! There is a difference between lawyers, and the truth is, if the lawyer is telling the client something they don’t want to hear, then that is very likely a great lawyer.