The Client is The Boss, or is S/He?
Published to: 000113, 000114, 000117, A Small Town Lawyer's Perspective, Perspectives of a Small Town Lawyer, West Virginia Lawyer - Tips and Techniques
on December 12, 2012 9:55 pm
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I have written on this topic before in “The Dilemma of the Difficult Client, Oct. 22, 2012 http://tinyurl.com/c9bfplx .
Recently I have pondered the question of how much is the client the boss, and should she or he “be the boss”. The short answer is, “Of course the client is the boss. They pay our fees.”
In some cases the client clearly is the boss. Guardians Ad Litem, of who I recently wrote, can be appointed to be legal guardian of a child or elderly person and actually recommend to the court something different from what their ward wants.
But a lawyer for an accused juvenile delinquent is supposed to advocate for what the child wants, such as going back into an abusive home, even if the lawyer knows it is against the child’s best interests. Consider also that the lawyer, as an officer of the court, must be truthful to the court, and you can see how difficult such decisions can be.
I never liked criminal defense because it seemed we always were trying to pull the wool over the jurors’ eyes. Casting “reasonable doubt” when we know we are bordering on being disingenuous was NOT my favorite thing.
Yesterday, a new client called to cancel her appointment because, “Hiring a lawyer will not benefit me.” She says that knowing that she had voiced that opinion during our phone conference and I had explained in some detail why that absolutely is not the case. In a 31 year marriage there are all sorts of issues to resolve. The fact that the husband cannot carry the wife on his insurance after divorce was the only issue the wife considered “important” so she will proceed into the lion’s den unrepresented. I do not wish her ill, but she is taking a grave risk.
Having done this for a living for 40 years, I have great confidence that if I take a careful history, and the client is honest with me, I can prescribe a course of action that will likely turn out to the client’s benefit. Thus, if the client wants to take the house instead of the retirement benefits (of equal value), that should be her choice. If she wants to take a larger up front payment or smaller, incremental lifetime payments (also of similar value), I say that is her choice.
But, if she wants to file a domestic violence petition out of spite, to expose their child to a new “significant other”, to waive all child support when she needs the money, to to have me lie to the Court, I say it is the lawyer’s job to put on the brakes and do everything in his power to dissuade the client. He also has a duty not to lie to the court, file a frivolous pleading, or take a position that is not supported by the law and facts.
If the client persists in ignoring the lawyer’s sound advice, or, worse, insists that the lawyer do something unethical or illegal, the lawyer must seek leave of the Court to withdraw as counsel, without revealing a confidence in doing so.
Forty years of experience has given me so many more tools to deal with such conflicted situations than I had as a young lawyer. I can reason, gently resist, argue, point out the problems, and occasionally twist hard on an arm in a way I could not do when I was less experienced.
Of course, a lawyer who has allowed the law and technology to pass him by, or who give the client that impression, cannot expect the client always trust that lawyer’s advice.
I believe I am better now than ever in my career in “guiding” my client in the right direction, and less inclined than ever to have a client get a “bit in her teeth” in a direction contrary to her or her children’s issues. I am happy to answer any questions or address topics in this area.
This post was written by Burton Hunter