GENCO MEMO-June 3, 2024: Why Are You Frustrated with Your Lawyer?
Short Answer: Because the decision-making roles are unclear.
Hello there,
Starting a week packed with client meetings, I am at the decision-making crossroads.
We can't move cases forward without sorting out who decides the what, when, how, and why of what we’re doing and where we’re going.
Yet sometimes, the lines blur between a lawyer’s and clients' roles.
In every legal representation I accept, I find myself taking on three roles:
Fighter
Advisor
Decider
In each of these, sometimes I make the decision and at other times, my client.
Knowing which and when is dilemma.
Let's explore the essence of attorney-client decision-making, a starting point for a legal practice that aligns with a clients' goals–while also upholding ethical standards.
Here’s one of my Sticky Note Mini-Maps where I summarize some of the key concepts in this memo. (You can use this as a guide.)
Before we get to specifics, let’s do some foundation learning.
What is a Decision?
I like words-especially root words.
So let’s start there.
The word "decision" originates from the Latin word "decidere," meaning "to cut off."
This definition fits because deciding involves cutting off alternative paths you could take. In other words, it's not just a choice; it's a decisive cut, a point of no return.
Ceasar made a decisive cut when he crossed the Rubicon. And Cortes did the same when he burned the ships. (Click these links, the short videos are good.)
This cutting off applies to all decisions–big or small. Each decision you make closes doors, which can be daunting and liberating.
So, when I begin working with clients, I establish three core principles at the start:
Candor: We are truthful with each other.
Control: We determine who controls which decisions and actions.
Compensation: We decide on fair compensation for the work done–upfront.
Starting there and being clear about these three principles helps set the right course on the small and big choices that will follow.
Now, let’s look at some more specific rules and decisions that govern the attorney-client relationship.
The Rules: Choosing Rules and Setting Limits
There is a wisdom in the simple rules for dividing and choosing. The same applies in defining the roles between lawyer and client.
When clients retain me they usuall have specific goals. Well, they may not know exactly what they are, but at least know they want to be in a better position in the future than they are now.
So, together, we strategize over factual and legal details to meet these objectives. And clients are consulted on all types of issues.
But not every detail in a case requires client consultation—like objections during a trial or precise wording in negotiations. Typically, a lawyer will make a final decision about those on there own. Its their area of expertise–hopefully.
But how do we decide which details matter and who makes the final decision?
The Model Rules: That's where the Model Rule of Professional Conduct comes into play, guiding us in decision-making roles.
Rule 1.2 highlights situations where lawyers have implied authority and special circumstances needing careful decision-making:
· When the client has reduced capacity.
· When the client engages in illegal activities.
Yet, this is only scratching the surface.
Let’s go deeper.
Client's Specific Authority
Model Rule 1.2 specifies four critical decisions where the client has complete control:
Civil cases: Deciding whether to settle.
Criminal cases: Deciding how to plead, whether to waive a jury trial, and whether to testify.
In these scenarios, the lawyer follows the client's direction.
But what about the moments when the lawyer must act independently?
Lawyer's Implied Authority
Beyond these critical decisions, lawyers have "implied authority" to take necessary actions to achieve the client's goals without needing approval for every step.
Example: If a client aims to win a lawsuit, the lawyer can decide on strategies, like which witnesses to call, without constant client consultation. (However, the lawyer must keep the client informed and discuss significant aspects of the case, as outlined in Model Rule 1.4.)
Yet, implied authority isn't limitless. There are critical moments that test this principle.
Boundaries of Implied Authority
Implied authority has its limits, especially when circumstances change significantly.
Case in Point: Buyer Bob hires lawyer Lisa to help him buy land, instructing her to negotiate hard for the best price. Later, Lisa learns that Bob has entered a business partnership with the seller. Given this new situation, Lisa should reassess her approach and consult Bob to see if his goals have changed.
Ok, it makes sense where there are changes in the general circumstances.
But what if the client's mental capacity to decide changes over time?
Diminished Capacity and Ethical Dilemmas
Sometimes situations arise that can get sticky and require a definite cutting off of the wrong paths.
Diminished Capacity: When a client cannot make well-informed decisions due to age, mental issues, or other reasons, Model Rule 1.14 guides lawyers on handling such situations.
Example: Lawyer Louis, starts a case with Alice, an older woman with no signs of dementia. Louis is able to communicate clearly with Alice, keeps her informed, and seeks her input when possible. But, she has a stroke and it becomes clear that she may not be able to consult with her properly. At this point, Louis may need to involve her family or request the court to appoint a guardian to protect her interests.
And then there are those ethical quandaries.
Criminal or Fraudulent Acts: If a client pursues illegal activities, the lawyer must act ethically and advise against it.
Example: Jorge asks a lawyer, Albert, to look up information on the court computer system about a case they no direct involvment in. In this situation, Albert must explain that this is illegal and advise against it. Albert might also need to cease representation to avoid legal repercussions per Model Rule 1.16(b) if Jorge persists.
This scenario actually happened recently in South Texas.
What about common problem patterns I’ve seen in the last 26 years working with clients?
Let's look at those next.
Problem Patterns to Watch For
Patterns repeat themselves and people fit patterns. Here are some that I see over and again.
The Co-Counsel Client: When clients, especially lawyer-clients, want to make decisions typically made by the attorney, it complicates the relationship. Setting boundaries and working cooperatively is crucial.
But what happens when the attorney allows this and just becomes a mouthpiece?
The Mouthpiece Lawyer: Some attorneys become mere mouthpieces for their clients, following orders without providing independent counsel. This approach denies clients the benefit of their attorney's expertise and often leads to suboptimal results.
But what about when lawyers take too much control?
The Bulldozer Advocate: Conversely, some lawyers take too much control, advocating too vigorously without consulting their client. This can stem from ego or a narrow focus on legal victories over client goals, leading to strained relationships and dissatisfaction.
And then there's the “let’s make law” trap.
The Case Law Crusader: Some lawyers also fall in love with the issues. These types get caught up in the thrill of trying a case or taking an appeal that involves a novel problem, sometimes so much so that they forget that the purpose of their representation is to represent their client and not to make new case law. This distraction can lead to misaligned priorities and missed client goals.
So what do we understand now and what can you do?
Why This Matters: Knowing and dividing decision-making roles between attorneys and clients avoids the frustration when decision authority is blurred.
Next Steps: So, here are some action items and next steps you can take to ensure that decision-making roles between you and your attorneys are clearly defined and not blurred:
Establish Clear Principles: Define and agree on the core principles of candor, control, and compensation at the start of the relationship. Ask that these principles be in writing to serve as a reference during the representation.
Set Specific Goals: Discuss and document the specific goals and objectives of the legal representation. Make sure you and the legal team understand the scope and limits of the engagement.
Define Decision Roles: Clearly outline which decisions you will make (specific authority) and which decisions the lawyer will handle (implied authority). Be sure to reassess and adjust decision-making roles immediately when there are significant changes in circumstances, such as new information or changes in goals.
Regular Communication: Establish a routine for regular updates and check-ins to keep up with the case.
By doing these types of things, you can maintain clear, effective, and ethical decision-making processes throughout your representation.
And avoid the frustration.
That is all.
Make good decisions and have a great week!