I understand that by RPC that an attorney is to pursue a client's 'objectives, ie the client chooses a desired goal, and the attorney advocates for that position.
I was recently told that "The client 'decides the goals and objectives, and whether or not to settle a case. All other decisions on how to accomplish the client's objective are for the attorney (alone?) to make, even if the client does not agree" Really? The attorney may act contrary to client's wishes?
Is this as much garbage as it smells like? A client has 'NO CHOICE in any actions or methods used ?
Certainly, the rules also say the attorney shall continually consult with a client, but are ALL choices outside of the client's basic objectives only the attorney's'right to choose' ? I would like your comments,thx.
By the way, FY'sI, The statement that all choices are for the attorney to make came from the Office of Attorney Regulation in response to a complaint of misrepresentation/ misconduct. They said "he can do what he wants and you have no say beyond a choice of action to pursue. He didn't do that eitherf.
yes garbage from the Supreme Court OARC intake person... Does the attorney complaint process need to be overhauled?
"Choice" and "Input" are not the same thing. Let me give you two examples:
1. Recently I had a case where the issue was the mental status of the declarer of an irrevocable trust. The amount in controversy was considerable. (If the trust was bad, my client would take much more money under a will). Aunt Bea was the person most knowledgeable about the declarer's state of mind. Aunt Bea was also in fragile health. The client insisted Aunt Bea not be bothered. It meant a great deal to client that aunt Bea live out her years unbothered. I explained that reduced the chance of success from about 80 per cent to a coin flip. Client said she could live with that. We made paper on that agreement and I proceeded without bothering Aunt Bea. This particular story has a funny ending but it is not relevant to your question;
2. I represented a cattle rancher in a fraud/brand forgery case against an auction house and a seller. My client looked at some, frankly, form interrogatories and said, "don't send #5" This interrogatory was about the agency relationship between the auction house and the seller and the answer would determine whether they were defending jointly or pointing the finger at each other. I asked "why not?" The client explained he thought it was insulting, that everybody knew the auction house was the seller's agent. I explained to him that it wasn't true until our record said it was true and I insisted on sending the interrogatory, adding, "You can get another lawyer if you want.." He didn't.
In both cases I listened to the client. In 1 I saw the primacy of the need for the client to have her way on a tactical issue. In 2, the client's reasoning had no compelling rationale attached to it, so we had a mini-showdown.
#2 was five years ago and I'm still his lawyer in new cases. It's a dialectical process.
What you say is correct in general, but representation is a partnership and relationship of trust, so tactical decisions should be discussed, particularly if the fees and charges are based on work effort (ie hourly billing and 3rd party expenses incurred on an open ended basis, or contingency matters where the client is not advancing fees and expenses and the law firm is essentially investing its own money in pursuing a client's matter).
However, some rule of reason needs to prevail, so that minor tactical decisions like the scope of discovery or pre-trial motions, the lawyer's expertise and judgment is deferred to if it makes sense and is explained and the attorney does not feel "micromanaged" and responsible for results where he is not doing things in the manner he thinks will best achieve the desired outcome.
Often, if a client is overbearing and unreasonable in this regard, the attorney will seek leave to withdraw and suggest you get a attorney you are more comfortable with who will do as you say.
Of course the client has a choice. They have the ultimate choice. They can fire their attorney at any time and hire new counsel or represent themselves. What the client cannot do is to force the attorney to take actions contrary to the attorney's best judgment.
The bottom line is this: The rules and case law require certain decisions to be made by the client (whether to settle, whether to testify in a criminal case). Beyond that, the decision making is as agreed to between the parties. They also require the attorney to refrain from taking certain actions whether or not the client wants the attorney to do so. It is a matter of the attorney and client working together.
The attorney should discuss everything with the client, but the final decisions regarding trial strategy and tactics are made by the attorney. If the client is unhappy with the attorney's advice or intentions, the client should find a different attorney to handle the case.
Clients always have a choice. So do attorneys. Unlike the relationship between a waiter and his customer, the attorney-client relationship is one in which the customer is almost never right (hence the need for an attorney in the first place). The client's absence of objectivity, legal education, training and experience make the client often his/her own worst enemy without knowing it. Effective communication is key in the relationship. An attorney cannot do something the client wants if it is unethical for the attorney to do so.
As a person who makes her living providing legal services AND a person who has needed to be a client for skilled legal services, my take on this issue may be somewhat unusual:
Good lawyers are very hard to find and can be challenging to retain once found. The demands on their time and attention are staggering and most of them need another case lots less than they need a week off and a therapeutic massage. The other kind of lawyer is underfoot everywhere and easily found and hired.
If you get lucky and manage to hire a truly gifted lawyer, sit down, shut up, and let your lawyer do what your lawyer knows how to do. Failure to do so will result in a short-term relationship in which you never got the benefits you could have reaped in the course of your case. Really good lawyers don't need to work for over-bearing aggressive contentious demanding clients who want a specific outcome after things have been done their way and only their way.
Like everything else in life, it's a trade-off: you trade control of the matter for the skill and labor of the hired professional. Or you don't. Make your choice and live with it.
