They Don't Call Us "Counselor" For Nothing: Part Two of Three

In Part One, the importance of sustaining a client’s morale was discussed.  Sustaining morale becomes particularly difficult when rendering candid advice.  Part Two will discuss the balance between sustaining morale and rendering candid advice.

Rule 2.1 of the Rules of Professional Conduct, in the part entitled “Counselor,” addresses “giving candid advice”:

In representing a client, a lawyer shall exercise independent professional judgment and render candid advice.  A lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.

The Comment following the Rule 2.1 reveals the delicate balance a “counselor” must maintain when delivering bad news – “unpalatable advice” to the client:

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 permit. However, a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.[1](Emphasis added)

How counsel communicates candid legal advice can be as important, if not more important, than what advice counsel communicates. Here is where our role as counselor comes into play, presenting candid advice “in as acceptable a form as honesty permits.”[2] When delivering “bad news,” counsel needs to appreciate human nature and the stressors in the client’s current circumstances.  However, there are times when the client needs to face the harsh reality of a dire situation.  “The truth does not change according to our ability to stomach it.”[3]

Timing when to give unpalatable advice can also be important.  For example, “[i]n some circumstances, a lawyer may be justified in delaying transmission of information when the client would be likely to react imprudently to an immediate communication.”[4]  As noted above, “[l]egal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront.”

The timeliness of a lawyer's communication must be judged by all of the controlling factors. “Prompt” communication with the client does not equate to "instant" communication with the client and is sufficient if reasonable under the relevant circumstances.[5]

Delivering candid advice also requires open communication between counsel and the client.  “A lawyer should maintain communication with a client regarding the representation.”[6]  “A lawyer acts as evaluator by examining a client’s legal affairs and reporting about them to the client.”[7]  “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...”[v8]  Rule 1.4 of the Georgia Rules of Professional Conduct, entitled, “Communication,” addresses this ethical responsibility of a counselor:

A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation, shall keep the client reasonably informed about the status of matters and shall promptly comply with reasonable requests for information.[9]

While counsel should be empathetic, independent professional judgment and candid advice means “an attorney is not merely the client’s alter ego functioning only as the client’s mouthpiece.”[10]  “The lawyer is an ‘independent … professional representative,’ not an ‘ordinary agent.’”[11]  “An attorney should not be an unreflecting conduit through which the opinions or desires of a client … are permitted to flow unchecked.”[12]  However, the “advocate’s task is to present the client’s case with persuasive force.”[13]

Knowing when and where to draw the line between a position the client urges and what will offend a court is a difficult task.  What is zealous advocacy to one court may be a Rule 11 violation to another.  This is where experience and judgment come into play.   Determining the best course of action and convincing a client to choose that course of action requires that you cultivate the client’s trust.

Rendering candid advice while sustaining morale when there are unpleasant facts and alternatives that a client may be disinclined to confront is where we earn the title “counselor.”

[1] Comment [1], Rule 2.1, Georgia Rules of Professional Conduct.

[2] “Specific Aspirational Ideals,” Professionalism, Ga. State Bar.

[3] Flannery O’Connor.

[4] Comment [4], Rule 1.4, Georgia Rules of Professional Conduct.

[5] Comment [1B], Rule 1.4, Georgia Rules of Professional Conduct.

[6] [3], Preamble, Georgia Rules of Professional Conduct.

[7] [2], Preamble, Georgia Rules of Professional Conduct.

[8] Comment [1], Rule 1.4, Georgia Rules of Professional Conduct.

[9] Rule 1.4, Georgia Rules of Professional Conduct.

[10] Thomas v. Tenneco Packaging Co. Inc., 293 F.3d 1306, 1327 (11th Cir. 2002); Morrison v. State, 258 Ga. 683, 686, 373 S.E.2d 506, 509 (1988).

[11] Morrison, supra.

[12] Thomas, supra.

[13] Comment [1], Rule 3.3, Georgia Rules of Professional Conduct.

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