A lawyer’s professional obligation to provide candid legal advice.

During a seminar that I did last week for Vermont Law School’s South Royalton Legal Clinic, I reminded clinicians that a lawyer’s job is not to tell the client what the client wants to hear.  A lawyer’s job is to provide the client with candid legal advice.  I said the same thing again today in a CLE for government lawyers. Indeed, it’s a tip I’ve shared for more than decade, including in the five blogposts linked below.

Typically, I deliver the message when discussing one of my 5 Cs of legal ethics: communication.  In my experience, most disciplinary complaints are not rooted in a lawyer’s failure to respond to a client’s calls or emails. Rather, they are rooted in a lawyer’s failure to communicate reasonable expectations to the client at the outset of the professional relationship. Or, stated differently, they’re rooted in a lawyer’s failure to disabuse the client of expectations that the lawyer knows are unrealistic.

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While I share the guidance in the context of Rule 1.4 and the duty to communicate, nowhere in the rule or its comments is it written “a lawyer shall provide clients with candid legal advice.”  As such, I’ve done a poor job communicating that my guidance is anything more than aspirational.  That ends now.  I post today to make clear that lawyers have a professional duty to render candid legal advice.

Rule 2.1 of the Vermont Rules of Professional Conduct is entitled “Advisor.”  The first line is:

  • “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice.”

Comment [1] falls under the heading “Scope of Advice.” It makes my point better than I ever have:

  • “A client is entitled to straightforward advice representing 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 a 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 legal advice by the prospect that the advice will be unpalatable to the client.”

Lawyers: consider what you’d expect from your auto mechanic, doctor, dentist, financial advisor, or anyone else to whom you turn for advice.  Or from your lawyer if you ever need to hire one!  You’d expect candid advice.  It might not be what you hoped for or wanted, but it’s the advice you’re entitled to receive.  Your clients are entitled to the same.

Rendering candid legal advice is more than a tip from bar counsel.  It’s a lawyer’s professional obligation.

Related posts:

Court isn’t a social media platform.

It’s the rare inquiry that involves the rule that addresses trial publicity.  Alas, in that it’s becoming more and more rare to find a lawyer not on social media, I think today’s message bears mentioning.

Rule 3.6 is the trial publicity rule.  It prohibits “extrajudicial statements that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”

Whoa.  Try saying that three times fast.

Anyhow, lately I’ve sensed a general feeling that arguments made in pleadings and court are seeping into lawyers’ social media posts, thereby raising Rule 3.6 concerns.

I disagree.

Based on the information I’ve reviewed when responding to inquiries and screening complaints over the past few years, I believe that the accepted norms of social media posts are seeping into pleadings and arguments.

I don’t say that with admiration for those causing the seepage.

Court is court.  It’s not the kitchen table, the town square, the bar, or Facebook. Give it the respect it deserves. Or, read Rule 3.5(d).

Last week, Professor Bernabe blogged about a Texas lawyer and client who were “’sanctioned $150,000 for the client’s ‘outright lies’ in litigation and ‘mountain of evasiveness’ in discovery.”  His post is here.  It links to this ABA Journal story, which, in turn, cites to a post on Law.com.

I’m not going to get into the misconduct that resulted in the sanction. For those interested in learning more about it, the court’s order imposing the sanction is here.

Rather, I want to highlight a statement made by the other lawyer.  Per the ABA Journal, “Opposing counsel Foster Johnson told Law.com that he hoped that the sanctions would be a warning to other lawyers.”

Then, the money quote:

  • “ ‘Lawyers at times forget filing motions and pleadings is not like using Twitter,’ Johnson said. ‘You can’t just say anything you want when you file a complaint. You can’t say anything you want when you file a summary judgment motion.’”

Indeed.

To paraphrase this blog’s muse, “say it in a Tweet it’s a knockout, but you say it in a court you’ll be kicked out.”

Remember, in pleadings & arguments:

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Don’t say I didn’t say I didn’t warn ya.

Manage expecations with candid legal advice

In November 2017, I posted The 50 Original Rules.  It’s a recap of the history of the conduct rules that apply to lawyers.

As best as I can tell, the earliest record of guidelines for attorney conduct in the United States is David Hoffman’s 1836 publication of his Fifty Resolutions in Regard to Professional Deportment.  My post includes each of Hoffman’s 50 resolutions.

182 years later, it’s somewhat fascinating to me how many of Hoffman’s resolutions continue to resonate.  Many are embedded in the rules and our collective professional conscience.  Given my fascination, I’ve resolved to blog about the continued relevance of Hoffman’s resolutions, taking them one at a time.  So far:

  1. Don’t be a jerk.
  2. Don’t switch sides.
  3. Don’t overcomplicate trust accounting.
  4. Deliver the file
  5. Resolve to be a mentor
  6. Be Diligent

Today’s tip: manage expectations by providing candid legal advice.

Here’s Hoffman’s Resolution 31:

  • “All opinions for clients, verbal or written, shall be my opinions, deliberately and sincerely given, and never venal and flattering offerings to their wishes or their vanity. And though clients sometimes have the folly to be better pleased with having their views confirmed by an erroneous opinion than their wishes or hopes thwarted by a sound one, yet such assentation is dishonest and unprofessional. Counsel, in giving opinions, whether they perceive this weakness in their clients or not, should act as judges, responsible to God and man, as also especially to their employers, to advise them soberly, discreetly, and honestly, to the best of their ability, though the certain consequence be the loss of large prospective gains.”

I’m using the exact quote.  To be clear, I’m not suggesting that competent representation includes being responsible to God or any other deity.  Again, I was simply quoting Hoffman.

The rest of Resoluton 31 is as relevant today as it was in 1836.  Candid legal advice is always a better option than telling the client what the client wants to hear.

I’ve written often on managing client expectations:

In my experience, the lawyer who fails to set reasonable expectations at the outset of the representation should expect to have the client file a disciplinary complaint.

False hope leads to disappointment.  Even if the result is as good as the client should have expected from the outset, the client likely will be disappointed if the result pales in comparison to what the lawyer suggested the outcome would be.  Don’t fall into that trap.  As Hoffman said, “[a]nd though clients sometimes have the folly to be better pleased with having their views confirmed by an erroneous opinion than their wishes or hopes thwarted by a sound one, yet such assentation is dishonest and unprofessional.”

Better to thwart unreasonable hopes with sound advice than to nurture their growth.

Manage expectations by providing candid legal advice.  If you don’t, the client will insert your name into the Blank Space on a disciplinary complaint.

Don’t say I didn’t say I didn’t warn ya.

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