Counseling Introduction

COUNSELING A process where the lawyer helps the client reach a decision. The lawyer identifies potential solutions, as well as their probable positive and negative consequences, and then helps the client weigh these consequences to determine which alternative is most appropriate.

LEGAL ADVICE Giving the client your opinion about what the client should do in response to a legal problem.

Some Ethical Rules Relevant to Counseling MR 2.1: Lawyer shall exercise independent professional judgment, render candid advice. MR 1.2: Lawyer shall abide by client’s decisions re objectives and consult with client re means. MR 1.4: Lawyer shall keep client reasonably informed and explain matters so client can make informed decisions. MR 3.1: Lawyer shall not assert frivolous claims or defenses. MR 4.4: Lawyer shall not use means that have no substantial purpose other than to delay, embarrass, or burden third person.

MR 2.1 – p. 76 In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.

MR 2.1, com. 1 A client is entitled to straightforward advice expressing the lawyer’s honest assessment. Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront. In presenting advice, a lawyer endeavors to sustain the client’s morale and may put advice in as acceptable a form as honesty permits. However, a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.

MR 2.1, com. 2 Advice couched in narrow legal terms may be of little value to a client, especially where practical considerations, such as cost or effects on other people, are predominant. Purely technical legal advice, therefore, can sometimes be inadequate. It is proper for a lawyer to refer to relevant moral and ethical considerations in giving advice. Although a lawyer is not a moral advisor as such, moral and ethical considerations impinge upon most legal questions and may decisively influence how the law will be applied.

MR 2.1, com. 4 Matters that go beyond strictly legal questions may also be in the domain of another profession. Family matters can involve problems within the professional competence of psychiatry, clinical psychology or social work; business matters can involve problems within the competence of the accounting profession or of financial specialists. Where consultation with a professional in another field is itself something a competent lawyer would recommend, the lawyer should make such a recommendation....

MR 1.2 – p. 13 Subject to paragraphs (c) and (d), a lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation....

MR 1.2 – cont’d A lawyer shall abide by a client’s decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

MR 1.2, com. 2 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. Conversely, 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....

MR 3.1 – p. 81 A lawyer shall not bring or defend a proceeding, or assert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal or existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.

MR 1.4(b) – p. 17 A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

MR 1.4, com. 5 The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so....

MR 1.4, com. 2...For example, a lawyer who receives from opposing counsel an offer of settlement in a civil controversy or a proffered plea bargain in a criminal case must promptly inform the client of its substance unless the client has previously indicated that the proposal will be acceptable or unacceptable or has authorized the lawyer to accept or reject the offer.

MR 1.4, com Adequacy of communication depends in part on the kind of advice or assistance that is involved. For example, when there is time to explain a proposal made in a negotiation, the lawyer should review all important provisions with the client before proceeding to an agreement. In litigation, a lawyer should explain the general strategy and prospects of success and ordinarily should consult the client on tactics that are likely to result in significant expense or to injure or coerce others.

MR 1.4, com. 5 (cont’d) On the other hand, a lawyer ordinarily will not be expected to describe trial or negotiation strategy in detail. The guiding principle is that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client’s best interests, and the client’s overall requirements as the character of the representation.

MR 1.16(b) – p. 67 Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:... (4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;... (6) the representation... has been rendered unreasonably difficult by the client;

Hypo 1 Suppose a relative with whom you are close dies, leaving you $150,000. Your cousin, with whom you have always had a good relationship, files a will contest. Your elderly grandmother is quite upset about the dispute. After six months, you receive a settlement offer from your cousin, under which you would get $45,000 after deduction of attorneys’ fees, costs and taxes. You would receive the money in one month. Your attorney indicates there is a 75% chance you will recover $90,000 (after attorneys fees, costs, and taxes) if you decide to take the matter to trial, but it will take an additional year before trial is completed.

Hypo 2 Your client has lent his motorcycle, worth $6,000, to a friend in San Diego. The friend has had the cycle for over three months, and despite numerous promises to return it, has still not done so. Ten days ago, your client phoned his friend one more time to ask for the cycle back, and the friend responded, “Get off my case.” The client told his friend he wanted the cycle back immediately or he’d sue, but the friend merely hung up on him. They have not spoken since and the friend has not returned the motorcycle.