By Selina J. Shultz, Esq., LL.M, Co-Director of the Conflict Transformation Institute at CoralBridge
A 1979 study of attorney-client interactions conducted by sociologist Maureen Cain revealed startling information about a typical attorney-client relationship. Despite years of education and training to hone their legal expertise, the attorneys she observed were not acting as independent counselors for their clients. Instead, clients were directing and controlling their lawyers. Cain found that in the overwhelming majority of cases, attorneys were simply being mouthpieces for their clients. Legal researcher Randall Kiser likens this to a patient entering a doctor’s office, telling the doctor his diagnosis, directing the doctor what to prescribe, and the doctor obediently following the patient’s orders. Although Cain’s study was conducted 35 years ago, it is quite likely a study done today would bare similar results. Today’s market with more lawyers, less work, and savvier clients, makes the temptation to cater to clients all the more tempting.
Although approaching cases this way may initially attract clients, the ultimate results of this approach of lawyering are suboptimal. This approach has lawyers stuck in the role of advocate, making their representation one-dimensional. The American Bar Association discusses an attorney’s four roles in representing a client: advocate, negotiator, evaluator, and advisor. By staying stuck in the advocate role, the client is denied the benefit of their attorney’s knowledge of the law and wisdom of experience when making decisions. When attorneys serve as a willing accomplice to their client’s disregard for the legal realities of their case, they are just as guilty if not more for the bad result in the end. The reality is that the client, who was happy to have a hired gun in the beginning of the case, now holds them responsible.
Conversely, lawyers sometimes take too much control over decisions without consulting fully with their client. Sometimes their own egos or inability to evaluate issues outside of the legal framework cause them to advocate too vigorously or hold on to an issue in negotiations that is inconsistent with their client’s goals, values, and objectives. Hours spent immersed in a case, taking depositions, writing briefs, preparing for trial and haggling with the otherside, make it difficult to walk away or fold on an issue that an attorney thinks they can win in court, even if it is not important to their client. An attorney taking too much control of decision making in a case can take several forms. There is “the Academic”. The Academic gets caught up in the thrill of trying a case or taking an appeal that involves a novel issue, sometimes so much so that they forget that the purpose of his representation is to represent his client and not to make new case law. There is the “Enough is never Enough”. This is the lawyer that is always concerned that they left something on the table, who continues to negotiate long after their client is satisfied. Then there is “The Save the Client from Themselves”. This is the attorney who doesn’t trust or respect their own client’s judgment and decision making abilities. They view their engagement as carte blanche to make decisions without consulting their client. Although, this is done from a sense of paternalism, its results can be extremely damaging.
The best lawyers approach the attorney-client relationship as a decision making team, with both members playing an integral part. The relationship has an important “ying and yang” that allows them to make decisions that acknowledge both the realities of the legal framework and the client’s goals, values and objectives. Good counsel recognize the delicate balance between candidly counseling the client through the legal process while also respecting that their client is making holistic decisions against the back drop of the rest of their life and their individual values. This type of representation does two very important things. The client is moving toward their goal, but is doing so in an informed, realistic, and thoughtful manner. (Although further articles will explore this in more depth, it is important to note that not only does behaving as a decision making team lead to better outcomes, it also keeps attorneys out of many ethical conundrums.)Good attorneys build the foundation for creating the collaborative decision making team with their client at the initial client interview with a candid transparent discussion of each of their roles that sets expectations for the entire engagement. This discussion includes helping the client understand the value of the lawyer telling them things they do not want to hear, explaining this candid advice will ultimately assure that the client does not waste their resources of time and money only to be surprised by unfavorable results in the end.
Constant communication with the client throughout the case is imperative to the creation of an effective decision making team. Busy attorneys are often visibly impatient with their clients when they speak, interrupting and short-circuiting. However, they would be better served to slow down and listen. A study done by Nancy Kline, author of A Thinking Environment, found that when people were interviewed after firing a professional they hired, the number one reason given was “they didn’t listen to me and they talked too much.”
Attorneys need to treat clients as their “thinking equal”. Attorneys have more legal knowledge than their clients, however, their client has other information that is equally valuable. This includes first hand knowledge of the facts and time line of the case and the context of the conflict. But more importantly, it is the client’s case and only they know what will satisfy them and what they are willing to spend and sacrifice to get it. Clients do not always know what information is important to give counsel, so it can be buried in casual conversation.Building a collaborative team rapport with clients allows the case to ultimately benefit from the independent strengths of both the attorney and the client with all decisions being analyzed through both the legal and client value lens. Even in cases where the results fall short of what the client wanted, clients who have been an active and informed part of the decision making team will be much more accepting than those who were not.