They Don’t Call Us “Counselor” For Nothing: Part Three of Three

Social Distancing

Part One discussed the role of a lawyer as counselor and the importance of sustaining a client’s morale, while Part Two dealt with balancing that morale with the ethical duty to provide candid advice.  Part Three will discuss the care and handling of clients when giving candid advice.  How does one best present the client with difficult, unpalatable alternatives?

When deciding what advice to give, when to give it, and how to give it, counsel also has to assess the client’s personality.  This is where the theory underlying the Rules of Professional Conduct meets reality.  “The Rules of Professional Conduct are rules of reason.”[1]  “Ordinarily, the information to be provided is that which is appropriate for a client who is a comprehending and responsible adult.”[2]  However, one size does not fit all.  Some clients are more emotionally fragile than others.   A client’s personality may have been the engine for their success in business, but it may also be their most vulnerable trait in litigation, e.g., the controlling, dominant executive who has always been able to talk his or her way out of tight business situations.

Recognizing and effectively dealing with a client’s adjustment –- or, more likely, their failure to adjust –- to the stress of litigation is important to effectively communicating with the client.  The stress of litigation can, in and of itself, bring on depression, anxiety, feelings of hopelessness, and panic attacks.[3]  There may come a point where counsel should “seek guidance from an appropriate diagnostician.”[4]

Other common examples of litigation bringing out personality traits include clients who are impulsive,[5] and who need to be clearly advised about the potential bad consequences of impulsive reactions.  Many successful professionals show obsessive-compulsive[6] behavior or thrive on defying authority.[7]  A healthy dose of patience, and counseling patience, is almost always good advice.  Sleeping on any difficult decision for at least one night is something every lawyer should do and should advise the client to do.

While a client’s behavior may not rise to the level of being “clinical,” it is important for counsel to recognize how a client’s personality may involve manipulative behavior.  As noted earlier, counsel should strive to “[m]aintain the sympathetic detachment that permits objective and independent advice to clients.”[8]

Common examples of manipulative behavior include flashing anger whenever confronted with difficult questions that challenge the client’s underlying actions.  Clients can be arrogant, haughty, and exploitive of others.[9]  Many clients want to avoid confronting the underlying evidence of their conduct.  Others want to foist decision-making on counsel so that if events do not turn out as hoped, the client can blame counsel rather than take personal responsibility.

An ability to distinguish between manipulative or controlling behavior and helpful ideas is part of effective communication with clients.  Many clients illustrate the maxim “a little knowledge is dangerous” by learning just enough of the law procedurally to suggest strategic and tactical moves; however, counsel is well advised:

A lawyer is not bound to press for every advantage that might be realized for a client. A lawyer has professional discretion in determining the means by which a matter should be pursued.[10]

As noted earlier, the Eleventh Circuit has made clear that “an attorney is not merely the client’s alter ego functioning only as the client’s mouthpiece.”[11]

On the other hand, “sometimes even a blind hog finds an acorn,” so listening[12] to the client while communicating is important.  Thinking “outside the box” sometimes leads to novel approaches that make common sense.  Having the client actively involved in his defense can provide many salutary benefits, e.g., the client is well informed and better prepared as a witness.

Open communication between counsel and client can also serve to dispel misconceptions the client may have either about the process or the substantive legal rules which will govern his/her fate.  Explaining the process and the timing of the process to the client can dispel unnecessary anxiety about the unknown.  Open communication can help to diminish a client’s unrealistic expectations about what result is achievable.  Open communication with candid advice can help a client assimilate the seriousness of his situation, the unpalatable (but realistic) options available to him/her, and the likely outcome of the process.

More often than not, there are many things a client can worry about, but very few he/she can control.  It is best to present the client with his/her realistic options, the actual choices he/she has under the circumstances.

Each client, each case, is unique.[13]  No one rule fits all.  However, the guidance provided in the Rules of Professional Conduct and the aspirational goals of A Lawyer’s Creed lay the foundation to fulfill the role as “counselor.”  Sound judgment, in addition to technical competence, combined with open communication, are the essential traits of a “counselor.”  Finally, a true “counselor” should “strive to represent [a client] as [counsel] would want to be represented.”[14]

[1] Preamble [13], Georgia Rules of Professional Conduct

[2] Comment [3], Rule 1.4, Georgia Rules of Professional Conduct.

[3] See, Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (hereinafter “DSM-IV”), 309.28, Adjustment Disorder With Mixed Anxiety and Depressed Mood; DSM-IV, 300.01, Panic Attack Without Agoraphobia.

[4] Comment [5], Rule 1.14, Georgia Rules of Professional Conduct.

[5] See, DSM-IV, 301.83, Borderline Personality Disorder.

[6] See, DSM-IV, 301.4, Obsessive-Compulsive Personality Disorder.

[7] See, DSM-IV, 301.7, Antisocial Personality Disorder.

[8] Rule 2.1, Georgia Rules of Professional Conduct.

[9] DSM-IV, 301.81, Narcissistic Personality Disorder.  Of course, none of our clients are like this.

[10] Comment [1], Rule 1.3, Georgia Rules of Professional Conduct.

[11] Thomas v. Tenneco Packaging Co. Inc., 293 F.3d 1306, 1327 (11th Cir. 2002).

[12] As one of my partners, Tom Bever, often advises, “God gave us two ears and one mouth for a reason; you should listen.”

[13] The author has not provided any “war stories” as examples because of the admonition in Rule 1.6 of the Georgia Rules of Professional Conduct to maintain the confidentiality of client information.

[14] A Lawyer’s Creed, Professionalism, State Bar of Georgia.


Share via
Copy link
Powered by Social Snap