Communication is a key to a healthy attorney-client relationship. Client input is critical for the attorney to develop an understanding of the underlying events and the client’s goals. However, when it comes to litigation strategy, the attorney must tread carefully when the client disagrees with the suggested approach. In this scenario, who’s the boss? By one account, the “scope of representation” is one of the “thorniest issues involved in legal practice” yet it is widely misunderstood. Often, the attorney who understands the ethical principles of allocation of authority is in a better position to effectively address the inevitable disagreement with her client.
Generally, attorneys have an ethical duty to abide by the client’s decisions concerning the objectives of representation and the means by which they are to be pursued. As interpreted by the courts, this means that attorneys have implied authority regarding “procedural” matters, but a client retains the right to make ultimate decisions affecting the client’s “essential,” or “substantive” rights. But the definition of “procedural” is not black-and-white.
Model rules 1.2 and 1.4 set forth the basic parameters of the allocation of authority between lawyer and client. Some aspects of the relationship, such as whether to settle a civil matter or whether to enter a criminal plea, are expressly left to the client. But these general guidelines leave many strategic questions unanswered: i.e. who has the final call regarding witnesses, dispositive motions, defense themes, or trial strategy?
For those decisions that are not expressly allocated to the client, the rules provide that the attorney should consult with the client to establish the objectives of the engagement and inform the client of all significant developments in the case.
In most circumstances, where the lawyer’s choices are purely technical and the client’s objectives are obvious, a lawyer may proceed without client involvement. A classic example is that an attorney usually need not consult with her client before agreeing to extend a discovery deadline to her client’s adversary. However, in the face of a deeply rooted disagreement, attorneys must clearly communicate (and perhaps document) the issues and the basis for the attorney’s recommendation. If the client still refuses assent, the lawyer is in a pickle: on the one hand, by going along with the client the lawyer may violate her ethical duty to act in the client’s best interest but, on the other hand, by overriding the client the lawyer may violate her ethical duty to accomplish the client’s goals.
Ultimately, the attorney must use common sense, guidance from the rules of professional conduct and case-law, and professional judgment when faced with a client unwilling to agree to the recommended strategy. In this scenario, the attorney should consider the use of the emergency exit door under model rule 1.16(b), and withdraw from the representation.
Excellent post. I do agree that these points are sometimes forgotten by attorneys when attorneys should be educating their clients.