7.07.2005

Commenting on a comment....

I got a really interesting comment to this post.

I said: "There are, of course, the clients. Ultimately, their best interests are the most important thing of all."

and the Commenter said:
No. As long as you are dealing with a competent client, and they're not seeking to do anything illegal, you are obliged to do what they want. It is unethical to do what you think is in their best interest, if that's not what they choose. Look at Rule 16-102 of the Rules of Professional Conduct.


I understand the point he's making. But what if an attorney, in zealous advocate mode, is more focused on making a point about something larger than the client's individual case than on what the client actually wants? This isn't what I saw last week, but I can see how a fantastically talented and passionate attorney might convince a client that a crusade is the correct path when all the client really wants or needs is a decent settlement, basicaly financial compensation for the wrong done.

Posted by Jenny at 9:36 AM

1 comment:

Anonymous said...

Such an attorney would be acting unethically. The judicial system is set up solely to resolve disputes, not to further crusades. That's why there's a 'cases and controversies' requirement for federal jurisdiction, for example.

In the good old days (before even my time), persuading someone to hire you as an attorney to pursue a crusade was a common law crime (cf champertry and maintenance, and barratry, if I recall correctly). The essential element of the wrong was inciting lawsuits, although usually it was done to provide a steady income to the lawyer rather than for political purposes.

This is still a live issue. It's part of the concern about lawyer advertising, it's a risk with class action suits where lawyers solicit for clients, and we are seeing something similar with groups apparently saying 'if you want to sue your school board to force the teaching of creationism, we'll pay for the lawyers'.

The terms 'representation' and 'zealous advocacy' necessarily imply that one is acting on behalf of the client, as an agent of the client, acting in the client's place and stead. Underlying the notions of 'attorney in fact' and 'attorney at law' is the notion that an attorney is one who acts solely at the direction of another. To use a client, and a client's problems, as a vehicle for attaining the attorney's objectives is the clearest sort of conflict of interest.

There is always a requirement of counseling, so that the client can uderstand the choices available and the possible consequence of choices. There's certainly room for recommending some choices over others, and perhaps even an obligation to recommend. There's even room for consideration of larger social issues - but it's always the client that gets to make the final decision. A client can always choose to act contrary to their own best interest, but for alawyer to seek to use a client for the lawyer's larger social goals is wrong.

Anyway, that's my opinion. I'm not sure that the Rules go quite as far as I do. I'm not sure I'm still disagreeing with you, either - I just wanted to repeat the important distinction between 'client's best interests' and 'client's instructions'. It's crucial, especially in things like guardianships ad litem, representing persons of questionable capacity, and the like.

12:17 AM

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