On Monday we talked about the Supreme Court case of McCoy v. Louisiana, wherein an attorney decided that a perfectly reasonable trial strategy was to tell the jury that his client had definitely committed murder in an attempt to avoid the death penalty. The lawyer did this without the permission of his client, and in fact did it explicitly against his client’s wishes. The client wanted the attorney to present a defense that he didn’t kill anyone, despite the state’s overwhelming evidence, and it brought to the highest court in the land the question of “Who really controls the representation.”
So we’re back today with Part 2, talking about who really gets to careen the bus of bad decisions off the freeway in glorious slow motion: the lawyer or the layperson who hires them. So, because I’m not gonna waste a lot of time or space today on building shit up, let’s just jump straight into this discussion.
Clients should be able to make decisions.
I’ll agree with that statement, and in the traditional attorney-client relationship, especially in civil matters, the client does have a certain amount of ultimate control. The client is the person who tells you what their ultimate goal is in hiring a lawyer in the first place, and if there’s a settlement offer the client gets the final say in whether or not to accept it. As a matter of fact, you’re ethically bound to communicate settlement offers to your client no matter what they are unless the client has explicitly given you the authority to reject or accept certain offers. And even then, you better have that authority in writing and you better fucking double-check with the client as to whether or not they want to accept it before you tell opposing counsel to go fuck off, because that shit can get you in trouble.
However in most other areas, clients are fucking idiots. That’s not meant to be insulting, at least no more insulting than we usually are to our clients privately where they can’t hear us. It’s a statement of truth. A client in a legal matter is just a giant walking ball of bad television show moments and the barest information they’ve obtained from the internet that they’ve distilled down into believing something like “If I eat the Queen of England’s heart, I’m legally the Queen of England.” And maybe they’re right sometimes, I’m not really sure how the monarchy and succession to the throne works over the pond, but most of the time they’re wrong. And that’s why we have these magical things called “lawyers,” who in addition to making your savings disappear happen to be highly trained (in most cases) professionals that make certain decisions the client can’t make for sake of concentrating on chewing gum and fucking breathing at the same time.
Congratulations guys, you’re in all actuality playing the role not of a learned professional but rather that of a parent with a toddler: try to keep the client from doing anything that will get them labeled “Senor Burnscars” in kindergarten.
Lawyers make a lot of the decisions though.
Yep, we fucking do, and you assholes with your freshly minted J.D.’s and bar cards with the ink still wet never need to forget that shit. You’re the lawyer, and that means that while the client gives you the goal of the representation, they in no means get to determine your strategy or how you approach that goal. You decide not to call the witness with the debilitating meth habit that has fifteen fraud convictions despite the fact your client thinks they’ll really help the case? That’s your call, and as long as you have a good strategic reason for not doing so you’re golden, pony boy (or mare girl, I guess).
The division of responsibility between the client and the attorney in the decision-making process is pretty fucking simple: Clients set the goals of representation and have ultimate authority over when to end representation through settlement, the Lawyer determines the means of reaching that goal and the best strategic and technical decisions to make in doing so.
Never shall the two overlap.
So I can just do whatever the fuck I want?
No. I mean, yes, but if you do you’re going to lose that license to practice law you love so well.
You should always consult your client about strategic decisions, but you don’t need to seek client approval for them. Could you imagine having to call a client and ask every time you take a shit whether you need to wipe from front to back or back to front? Some stuff we just need to be able to fucking do, without having to yank Cletus the Common Law Divorcee on the phone to ask if it’s okay first.
For example, shit like granting the other party extensions.
Unless shit’s been dragging on for a while, I literally will never ask a client whether or not it’s okay to give the opposing side and extension. Why? Because my client, full of piss and vinegar, will say no. But there are a good number of strategic reasons why I may do it, including but not limited to the fact that I’ll likely need an extension at some point in the future. Plus it’s common courtesy to keep the other side good with us early on and foster an environment where we can settle the case. Why the fuck would I call a client for a purely strategic and technical decision that doesn’t impact their case at all?
Sure, after I tell Patty Plaintiff’s dipshit lawyer that it’s okay to take an extra two weeks to get me the discovery responses I’ll advise my client that I did so. But there’s no reason my client should have a say in something as small and technical as that.
So..I CAN do whatever the fuck I want?
Once again, no, but yes.
Some shit is definitely shit you need to run by the client, like settlement offers as discussed above or things that will change the ultimate outcome of the case or things that will have an impact on the client’s life. For example, say you’re going to concede that damages are lower so you can force the case into arbitration, where you think the client has a better chance of winning, instead of a jury trial. That’s the sort of shit you need to run by your client first and make sure everyone’s on the same page. Same thing with deciding to call the client’s poor, benighted mother onto the stand when Momma doesn’t want to be involved at all…or may face liability for whatever sonny-boy is accused of doing. That can have a direct and personal effect on your client outside of the case, and you really should get the approval of the client before taking that position.
This is a little confusing.
Yeah, here’s the rule of thumb:
If it is a purely strategic and technical decision, you don’t need to really get the client’s approval for it.
If it’s a decision that changes the nature of the case, directly affects the goal set out by the client, or will have a major impact on the client’s personal life, you should at least be consulting with the client and giving them a chance to voice their objections.
What if it’s the latter and we don’t agree?
That’s a lot more difficult, isn’t it?
If you hit one of those really important things you need to discuss with your client and the client says “Absolutely fucking not man, I am going to eat the Queen’s heart,” you have a choice.
Your choices are as follows:
- Document the fuck out of this in a CYA letter;
- Try to bring the client to your point of view;
- Concede to the client;
- Determine whether this is something the client really gets final say over; or
- Withdraw from representation.
Now, I hear some of you saying “Wait, you said something about determining if the client really has a say over it…” Yeah. Look, just because you need to consult with a client doesn’t always mean they get to dictate to you what you’re going to do or not do. Matters of strategy, such as whether to call a witness, defenses to present, and shit like that are purely in the realm of the lawyer, even with client consultation. And this isn’t just me blowing smoke out of my ass: The Supreme Court of the United States has determined that lawyers are the sole people who decide what legal arguments to raise and how to support them in many, many situations. Jones v. Barnes, 463 U.S. 745 (1983).
For example, it’s not uncommon for me to tell a client that I absolutely will not raise a claim or defense because I believe it to be entirely unsupportable and not passing what some folks call “the giggle test” and what I call the “Bullshit!” test.
The bullshit test. Essentially, if I look at a claim and the facts, and decide that anyone reading the complaint based on those would say “What a load of bullshit,” it’s not a good claim. And I won’t raise it. Because it’s my credibility on the line.
This is why lawyers are in charge of those decisions. A client tossing every claim possible at the opposing side runs the risk of hurting their case. Your job as a goddamn trained attorney is to stop that shit from happening.
What if my client insists?
The division of decision making between the attorney and the client exists for a damn good reason, namely to allow the lawyer to advocate the client’s case in a manner most likely to reach a reasonable outcome. A client who won’t respect the fact that you’re making strategic decisions guided by experience and law is a fucking nightmare to deal with. And, at the end of the day, it’s your reputation that the client is toying with by demanding you take measures you don’t approve of. So, if a client demands that you take a course of action that is within your discretion as an attorney and the direct fucking opposite of what you would normally do, then you fire the fucking client.
Or you let the client fire you.
By the way, this can apply to shit that is in the client’s purview as well. If the client insists on a course of action that they get the final say on, but you disagree with, you should try to resolve the fucking problem and, if you can’t, ask they find other counsel if you think it’s a deal breaker.
Seriously. Don’t go after the dollar so fucking hard that you sacrifice your better judgment. Remember, when you’re meeting with a client there’s only one fucking lawyer in the room, and it isn’t the asshole whose name appears in the caption of the case.
No, no it isn’t it. There are a lot of intricacies involved in some of this shit, and you should definitely be checking your local bar rules and ethics opinions before you tell a client to pound sand with their poor decision-making skills.
But other than that, the main takeaway you need from today’s post is the you’re the goddamn lawyer, and that means you not only have the ethical duty to zealously advocate for your client but also the ethical duty to protect your client from themselves by making the call when it’s your place to make the call and disagreeing with your client’s decisions when they’re patently wrong. And trust me, your client is definitely going to be wrong.
People with good decision-making skills don’t tend to get sued too fucking often.