How modern representation involves more than analyzing the law

Beyond the law: lawyer as advisor

Lawyers are retained to provide legal advice. But that is only the beginning. California rule 2.1 discusses a lawyer’s role as advisor. It explains that during representation, a lawyer “shall exercise independent professional judgment and render candid advice.” Most lawyers know this. Yet the comments bring the rule alive within our modern social landscape.

Comment [1] explains that a lawyer ordinarily has no duty to investigate a client’s affairs, or to give advice the client has indicated is unwanted. However, when appropriate, a lawyer may proactively give advice to a client when it appears to be in the client’s interest.

Comment [2] describes the breadth of considerations a lawyer may take into consideration during representation, permitting them to consider factors beyond legal advice, including economic, moral, as well as social and political factors that may be relevant to the representation.

These comments provide important guidance for lawyers that are hesitant to provide practical information and guidance to their clients for fear of veering out of their professional lane. Such advice can be of enormous benefit, because the lawyer, who has experience and expertise within the subject matter at issue, will be far more socially and legally savvy than the client regarding the potential issues likely to arise either in a court of law or within the court of public opinion, or that could complicate achieving the goals of representation.

Sharing more than legal advice

The recognition of the importance of lawyer as advisor implicates the duty of communication as well. Rule 1.4 covers everything from the duty to keep the client reasonably informed about case-related significant developments to advising the client about “any relevant limitation on the lawyer’s conduct” when the lawyer knows that his or her client expects assistance not permitted by the rules.

Reading rule 1.4 in connection with rule 2.1 reminds lawyers they should consider whether they have an obligation to share with clients any facts or developments related to how the current social, political, or legal climate may impact the client’s case, which could be considered a significant development.

Regarding limitations on a lawyer’s conduct, when social, political, or other relevant factors are at play, some clients expect their lawyers to break the rules in pursuit of “zealous” representation – as they have seen other counsel do in the news, in Hollywood crime dramas or Netflix documentaries, or on social media. When a client has such preconceived ideas, rule 1.4 sets forth the duty to discuss ethical limitations on behavior in the real world.

Representation is not endorsement

Sometimes, advising a client per rule 2.1 will be challenging when the lawyer has personal beliefs in conflict with the goals of representation. Examples include the criminal defense professional specializing in DUI cases whose daughter was killed by a drunk driver, or the lawyer whose parents both died of lung cancer who represents a major cigarette company. Some lawyers in this position argue such disagreement makes them superior advocates, working extra hard to objectively, consciously, and intentionally separate their feelings from the focus of representation.

Interestingly, rule 1.2 comment [3] reminds lawyers that the representation of a client “does not constitute an endorsement of the client’s political, economic, social or moral views or activities.” Reading rules 2.1 and 1.2 together reveals the reality that modern lawyering requires considering a host of extra-judicial considerations, whether we agree with them or not. And in the spirit of providing competent representation per rule 1.1, it is always wise to discuss with your client, the social, political, or other considerations that may impact your case.

Wendy Patrick is a career trial lawyer, former chair of the California State Bar Ethics Committee (Committee on Professional Responsibility and Conduct), and former chair of the San Diego County Bar Association Legal Ethics Committee. She writes and speaks on legal ethics nationally and internationally. The opinions in this column are her own and do not reflect the opinions of her employer.