I recently had a chance to talk to an old lawyer acquaintance, J. Horace Middlemier, III. He is a sometimes curious practitioner who tends to bring me perspectives that are interesting and thought-provoking. Horace started this conversation, as he is wont, with a bit of bombastic hyperbole. He apparently revels in the hope that he will shock or confound his listener.
"Clients are just like children."
I thought of attempting to narrow the scope of his bombast with perhaps "you mean your clients are like that," or "a client is like that," but I demurred. Experience has taught the best response to Horace is simply some encouraging entrez vous. An invitation for Horace to ascend his proverbial soap box and wax, as it were, eloquently (whether there is eloquence or not). With or without the eloquence, there will be "forceful." A mutual acquaintance once referenced Horace as the best example ever of the old Ivy Baker Priest quote "I'm often wrong, but never in doubt."
Horace proceeded to complain that his clients called too often. Their questions, he says, are repetitive and too often rudimentary. Horace described how he explains the law, applies it to the client's facts and situation, and provides consistently sound advice. But, he complains, his clients persistently and repeatedly ignore or misconstrue the advice. He proceeds with an analogy to his children. You tell them things for their own good, and they don't listen: "Don't touch that," "Get down from there," "wash your hands," "stay back from the ledge." Then you have to deal with the consequences of them ignoring you. "Clients are just like children" he reasserts.
Horace was particularly perturbed that his client's election to ignore his advice often leads to more significant and pervasive issues and problems in the cases for which he has been hired. He sees himself being "forced" to defend poor decisions, mistakes, and missteps. He confided "I just want to shout 'I told you so!'" Horace perceives himself as somehow the victim; he sees himself too often picking up pieces and striving to overcome deficits that he both foresaw and warned about.
My facial expression must have signaled my surprise. As his grievance dissertation began to wane, his energy seemingly spent, he rebounded with "Don't get me wrong, I like my clients!" He proceeded to explain that he would simply like them more if they would simply abandon their free will and just do as he told them.
I was admittedly a bit taken aback by his comparison to children. A major distinction from my perspective is that children may lack the maturity or development to make well-reasoned decisions. That is, children may not be choosing to disregard what they are told, they may simply not be ready for the complex thinking we might desire in those choices. Clients, on the contrary, maybe making those complex decisions based upon more than just the legal perspective that an attorney is providing. While counsel may be the most informed on the legal aspects, she/he may nonetheless not be the best-versed overall on all of the elements of some decisions.
That a client takes a tack the lawyer would not does not make the client wrong, merely different. That a client does not agree with a counselor does not make her/him petulant or recalcitrant, merely different. And, perhaps Horace tends to only remember those times he was ultimately proven correct and he forgets those times when such a client decision was seen in retrospect as being quite effective?
That a client takes a tack the lawyer would not does not make the client wrong, merely different. That a client does not agree with a counselor does not make her/him petulant or recalcitrant, merely different. And, perhaps Horace tends to only remember those times he was ultimately proven correct and he forgets those times when such a client decision was seen in retrospect as being quite effective?
I reminded Horace of the lawyer's role. The preamble to the Rules of Professional Conduct delineates various roles: advisor, advocate, negotiator, and evaluator. The actual language is:
As an adviser, a lawyer provides a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications.
As an advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.
As a negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealing with others.
As an evaluator, a lawyer acts by examining a client’s legal affairs and reporting about them to the client or to others.
I pointed out that there is nothing in these charges that says a client is somehow obligated to follow the advice and opinions provided by the attorney.
Furthermore, I reminded him, that the decisions often belong to the client. Rule 4-1.2(a) specifically addresses this:
"a lawyer must abide by a client’s decisions concerning the objectives of representation, and, as required by rule 4-1.4, must reasonably consult with the client as to the means by which they are to be pursued."
The Comment to the Rule makes clear the client should "determine the purposes (objectives) to be served by legal representation." Further, the lawyer is "not required to pursue objectives or employ means simply because a client may wish that the lawyer do so." Generally, as to means, "the lawyer should assume responsibility for technical and legal tactical issues." However, the client should decide about things that will cause expense or affect third persons. And, while the decisions on objectives are the client's, an attorney may decide to part company with the client because of those decisions. It is, after all, a voluntary relationship between lawyer and client in most instances.
I stressed the "client's decisions" part. I also reminded him that the Rule proceeds to clarify that these client decisions in no way impugn Horace or any other attorney. Rule 4-1.2(b) says:
"A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social, or moral views or activities."
There is no requirement in the world that says everyone must make good decisions, heed the advice, avoid repeated mistakes, or even listen to great advice. It is not the lawyer's obligation to keep the client from error, but to educate and inform them about the law, and the implications of their proposed course, and to recommend alternatives. That the client does not make the choice Horace wishes does not make them like children, it makes them clients. Clients have free will and are ultimately responsible for both their good and not-so-good decisions.
I suggested that Horace both strive to remember the distinction and to try to keep his blood pressure in check. After all, the fact is that we are all human beings. Mistakes and misjudgments are simply part of who we are. When we misjudge or misstep, the last thing any of us ever need is the "I told you so" that Horace says he is so anxious to deliver.
(Note, J. Horace is a fictional character, a conglomeration of various attributes or statements or behaviors of a great many characters or characterizations gleaned over many years. He is intended as "any man" and any similarities between this fictional character and any real person, living or dead, is mere coincidence).
