by Laura R. Schlenker
Imagine a client walks into his attorney’s office, justifiably angry, and wants his attorney to do whatever it takes to protect or enforce his legal rights. We have all been there. We know what our clients want to hear, and what they want us to do. But what exactly do the Texas Disciplinary Rules of Professional Conduct say about client conversations at the front end of representation? Do the Rules impose a broader duty than zealously advocating his case? When should attorneys have “the talk”—the ADR talk—with their clients?
Under the Texas Rules, attorneys have two primary roles, “Advocate” and “Counselor.” Each role is separately defined and ethically distinct. It is critical that lawyers understand our responsibilities as Counselor so we do not abdicate them in our rush to raise the banner for our client.
Texas Rule 2.01, the lone rule describing this aspect of the attorney-client relationship, states that “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice.” What kind of advice? The comments lend some guidance. The advice should take into account “practical considerations, including costs and effects on other people.” Also, “it is proper … to refer to relevant moral and ethical considerations.” And “the lawyer’s responsibility as advisor may include indicating that more may be involved than strictly legal considerations.”
The ABA comments under the parallel Model Rule are even more explicit: “when a matter is likely to involve litigation, it may be necessary … to inform the client of forms of dispute resolution that might constitute reasonable alternatives to litigation.” While the Texas Rules do not explicitly contain this language, it is reflected in the Texas Lawyer’s Creed: “I will advise my client regarding the availability of mediation, arbitration, and other alternative methods of resolving and settling disputes.” Section II, No. 11. In Texas, these alternative methods include collaborative law. The collaborative process is codified in the Texas Family Code, and is engaged by contract in civil settings.
Advocate vs. Counselor – what is the difference? Consider that an Advocate generally deals with past events as the attorney navigates the legal system on behalf of the client. By contrast, a Counselor assists the client in determining the course of future events in light of future goals and relationships. Part of our job as attorneys is to discover where our clients want to go, and help them chart the best route to that destination. In that sense, one function of an attorney is to be a vision caster—to help each client determine what outcomes are the most desirable, and what pathways will achieve those goals.
This requires some work on the part of the attorney. Just because a client tells you “what he wants” and “what he wants you to do” does not mean the client will be where he wants at the end of the process. A lawyer fails his client if he does not take the time to fully understand and assess the client’s situation, to the point that the lawyer is able to “exercise independent professional judgment.”
Whenever litigation is a possibility, it is prudent to manage client expectations by discussing ADR at the front end, in view of the numbers alone. Over 90 percent of litigated cases settle before trial. Clients can feel betrayed if their passionate advocate suddenly begins to suggest compromise. And if settlement is always a potential endgame, then planning for it in advance will provide a better result than an 11th hour scramble.
But other factors in the client’s situation may trigger a need to consider ADR—both collaborative law and mediation—as the primary process of resolution:
- The existence of an ongoing relationship or goodwill that the client would like to preserve in some fashion. In family law this may take the form of ongoing parenting relationships or extended family circles. In civil law, it might manifest in vendor/purchaser, contractor/subcontractor/client, employer/employee, business partners, franchise relationships, medical provider/patient, etc. Remember, it is generally not a good business model to sue a client!
- The need for more flexibility or creativity in problem solving than litigation can offer. For example, judges can enforce or void a contract, but cannot rewrite it.
- The desire to control the financial cost of the legal process, or to avoid the intangible or personal costs of litigation.
- The need for privacy.
The ethical lawyer will come alongside each client from the beginning of representation, to help them envision the future they desire, and then actively counsel them about alternative pathways to that future. The ethical lawyer embraces the role of Counselor as readily as that of Advocate.
Laura Schlenker, of Schlenker Law, is Chair of the DBA Collaborative Law Section and can be reached at email@example.com.