Tuesday, March 12, 2013

"Ms. Niceperson"

Stephen Gillers, Regulation of Lawyers
"Ms. Niceperson"

*This, like the other answers to questions in the book, are largely based on student opinion and do not necessarily state the correct law.

“Ms. Niceperson” This problem raises issues concerning a lawyer’s duty to keep her client informed and whether she has to abide by the client’s decisions relating to the matter.
Under Rule 1.4(a)(2) a lawyer “shall reasonably consult with the client about the means by which the client’s objectives are to be accomplished…” Here, the attorney has information that is potentially detrimental to opposing counsel, but would obviously accomplish the client’s objective by having the claim dismissed by the court, saving the client a substantial amount of money and possibly even their business. Because the lawyer’s actions will impact if/how the client’s goals are to be accomplished, we believe that under Rule 1.4(a)(2) the lawyer would be required to ask the client for her opinion on how to proceed.

The attorney wants to know whether she is bound by her client’s order not to tell Gary about his mistake. Under Rule 1.2(a) an attorney “shall abide by a client’s decisions concerning the objectives of representation…” Comment 2 to this rule states that on occasion a lawyer and client may disagree as to the means to be used to accomplish the client’s objectives. The comment also explains that, in the event of disagreement, lawyers usually defer to the client regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected. Conversely, clients normally defer to the special knowledge and skill of their lawyer with respect to the means to be used to accomplish their objectives, particularly with respect to technical, legal and tactical matters. In this situation, we believe that the lawyer would have to abide by the client’s wishes because this is not dealing with the “technical, legal and tactical” matters of achieving the client’s objectives. Instead, this situation deals with how a third party, Gary, will be adversely affected if he is not warned. In the alternative, the attorney does have the option to withdraw from the representation, if she feels that the disagreement is fundamental

Furthermore, under Rule 1.3, a lawyer “shall act with reasonable diligence and promptness in representing a client.” Comment 1 to this rule states that a lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor. However, the lawyer’s duty does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect. It could be argued that failing to warn Gary of his mistake might be considered an “offensive” tactic. The attorney could justify warning Gary of his mistake, despite her client’s opposition, if she could show that not doing so would be considered offensive.

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