Client Decisions vs Lawyer Decisions
Who sets the goals, and who decides how to achieve them?
Lawyers are bound by Rules of Professional Conduct. Rule 1.2 governs the scope of representation, and states that although a lawyer’s job is to consult with the client to establish their objectives and goals, it is the lawyer’s decision to decide the means of achieving those goals.
Some decisions, though, are solely at the discretion of the client. For example, it is 100% the client’s decision to settle a matter or not. Although many clients rely on the lawyer’s expertise and knowledge of the situation in making that decision, the decision itself belongs to the client.
A lawyer might believe, from experience, that a settlement offer from the opposing side is the best outcome the client will get, and advise the client to accept the offer. But if the client refuses to accept, the lawyer must abide by the client’s wishes, and decline.
Setting Goals
The goals of the case are in the sole discretion of the client. It is important in a lawyer-client relationship to establish the goals of the client early, so the lawyer can decide the means to achieve those goals. This decision is also determined by the client, for the most part. A lawyer consults with a client about the means, but the final decision is that of the client on which option to choose after a thorough cost benefit analysis of each option. Sometimes clients want to pursue a legal route that is not an option; in that instance as described below, it is within the lawyer’s professional conduct to not pursue a legal strategy that has no merit.
Here’s a fact pattern for example: Lawyer is retained to represent client where the client is charged with possession of a controlled substance after his/her car was searched at a traffic stop. The goal of the client is to not get a conviction. The client asserts that police had no right to search client’s car at the traffic stop.
Let’s say that the prosecutor has offered client a plea deal of probation, but the client wants the lawyer to file a Motion to Dismiss and Motion to Suppress, and decline the probation offer.
Many decisions must be made here, so who has final say in these decisions?
Achieving the Goals
Every professional is expected to know how to use the tools of his/her trade. Architects, engineers, doctors, accountants and lawyers are alike in this sense.
In the traffic stop case presented above, given the facts and the client’s goals:
1) Lawyer must accept the client’s goal of not wanting a conviction and do everything in
his/her power to make that happen.
2) Lawyer must decline the probation offer, because client explicitly states that he/she
does not wish to accept the offer.
3) Does lawyer file a Motion to Dismiss?
4) Does lawyer file a Motion to Suppress?
The filing of motions is a decision to be made by the lawyer, not the client, because the judge will be asked to rule on the motions, and the lawyer has to make sure that the motion has a rational, legal basis. Rule 3.1 of the Rules of Professional Conduct governs the filing of frivolous claims and states that a lawyer shall only file claims where “there is a basis in law and fact.” In all cases, there are court procedures that must be followed, so it is the lawyer’s decision as to whether these motions are frivolous or not.
It is the lawyer’s decision as to whether these motions get filed. Most likely, since the police did not have a right to search the car, the lawyer will file the Motion to Suppress, but since there are procedures in place outlining when a Motion to Dismiss is appropriate, the lawyer will not file the Motion to Dismiss (at least not yet).
Other decisions, such as initial time extensions on standard motions are also the decision of the lawyer, not the client. Decisions on professionalism and courtesy to other attorneys are decisions of the attorney.
Clear Communication is Vital
Even though this is one of the biggest conflicts that arises in lawyer-client relationships, it is easily avoidable with clear communication about the when, what, and why of the legal strategy.
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