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Citation:
David Binder; Paul Bergman; Susan Price, Lawyers as
Counselors: A Client-Centered Approach, 35 N. Y. L.
Sch. L. Rev. 29 (1990)
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DAVID BINDER*
PAUL BERGMAN*
SUSAN PRICE**
Attorney: From what you tell me, Mr. Rodale, your objective is to get
DataCo's auditing department operating efficiently as quickly
as possible. Is that right?
Attorney: Well, from what you've said, it seems clear that DataCo has
every legal right to terminate Ms. Rex. She has repeatedly
ignored warnings about getting her work done on time and
given the problems that her lateness has caused, there is
certainly good reason to fire her. What you need to do,
however, is determine whether you want to go ahead and
terminate her, or whether you want to follow some other
course of action, such as suspending her, or having her agree
to resign in exchange for some kind of a severance package.
From what you've said, it does not appear the decision will
1990] LAWYERS AS COUNSELORS
Attorney: Ms. Biggs, has our discussion given you a picture of what
options the partnership could follow in setting up a bank
account and the pros and cons of each?
Client: Yes, but I'm in a bind. On the one hand I want to make sure
that once the partnership is going Jean won't be able to
make bank withdrawals of more than $2000. On the other
hand, I can see that asking for this kind of protective
provision in our written agreement may really poison the
negotiations. What option do you think I should choose?
12. This definition is a modification of that originally used by David Binder and Susan
Price. See D. BINDER & S. PRicE, supra note 2, at 5.
13. Your obligation to counsel and advise is a reminder that you should not represent
a client whose matter requires an expertise or level of experience that you lack. See e&,
MODEL RuLEs OF PROFESSIONAL CoNDuCt Rule 1.1 (1989) (demanding competent
representation based upon requisite skill and knowledge); MODEL CODE OF PROFESSIONAL
RESPONSIBILTY DR 6-101(A)(1) (1981) (lawyer should not handle legal matters which she
knows or should know she is incompetent to handle).
14. See infra notes 18-24 and accompanying text.
15. For a discussion of when and how you might interject your opinions, see infra
notes 47-62 and accompanying text.
16. For a discussion of what decisions might appropriately be made by lawyers, see
infra notes 62-77 and accompanying text.
17. See infra notes 78-89 and accompanying text.
NEW YORK LAW SCHOOL LAW REVEW [Vol. 35
part the client, not you, will have to accept the immediate and long-term
consequences of any decision. For example, deciding to take depositions
may cost a client thousands of dollars. 18 Similarly, a client will either
enjoy the benefits or suffer the losses attendant in decisions to hire an
expert, leave an arbitration clause out of an agreement, or accept a
settlement offer.
18. Even contingency fee lawyers who sometimes pay (albeit perhaps improperly)
clients' litigation expenses should recognize that this statement is correct.
19. Some lawyers consider possession of a law degree a sufficiently strong reason to
override client autonomy. Such a view, however, fails to appreciate how most decisions are
based on nonlegal expertise and personal values.
20. A standard by which clients make decisions based on maximum satisfaction does
not prevent an attorney from bringing to a client's attention such important considerations
as the interests of third persons, of society as a whole, or of the attorney's own interests.
Moreover, sometimes an attorney may express disagreement with a decision even though
he/she thinks it likely to provide maximum client satisfaction. See infra notes 70-89 and
accompanying text.
21. For example, a corporate executive having to decide whether to postpone a trial
- date will be better equipped to predict how the delay may impact the company's financial
planning and employee morale.
1990] LAWYERS AS COUNSELORS
Kimmel would recover at least $65,000. On the other hand, trial is still six
months away, and there is a slight chance that at trial Kimmel would
recover nothing. Should Kimmel accept the offer?
Your legal, "objective" point of view, balancing the "bird in the
hand" of $35,000 against the risk of recovering nothing coupled with the
delay of trial, may be that the offer is acceptable. But whether the offer
is satisfactory to Kimmel depends on the importance Kimmel attaches to
the likely consequences of settling. A settlement would bring Kimmel
$35,000.2 But how important is this cash to Kimmel? If Kimmel is
wealthy, the answer may be "not very."u Additionally, there may be
noneconomic ramifications. Settling may eliminate Kimmel's opportunity
to publicize the dispute, and thus may be unattractive if Kimmel desires
a public airing. Moreover, a decision will probably have an effect on
Kimmel's state of mind. Is Kimmel worried about this case? Do thoughts
of it wake Kimmel during the night? If so, Kimmel may place a high
value on ending these worries and choose to settle. Or, acceptance of the
offer may cause Kimmel to feel like a "chicken." If so, the possibility of
injured self-esteem may tarnish the allure of the settlement option.
Similarly, to attain maximum client satisfaction in transactional
matters, clients should be given the opportunity to subjectively assess the
probable consequences of a course of action. Assume that you represent
Martino, the owner of several shopping centers including a new mid-
sized center. On Martino's behalf, you are negotiating a proposed lease
with SafeBet Markets. Under the lease, SafeBet would become an anchor
tenant in the new center. As Martino instructed, during negotiations with
SafeBet, you have repeatedly asked SafeBet's lawyer to agree to a lease
provision requiring SafeBet to pay a pro rata share of the maintenance
costs for the center's common areas. Such a provision is typical in
commercial leases in your area. During a prior negotiating session,
SafeBet's lawyer told you that a common areas clause is unacceptable to
SafeBet. The final negotiation meeting with SafeBet's lawyer is scheduled
for tomorrow. In your opinion, only a small possibility exists that SafeBet
will agree to the lease provision. The decision to be made is whether or
not to continue to insist on the maintenance provision.
One likely consequence of continued insistence on the provision is
that SafeBet will break off negotiations. How important is it to Martino
to obtain rent? If immediate income from the lease is important, or if
SafeBet's tenancy will encourage other potential tenants to lease space,
22. For the sake of illustration, we put to the side questions of attorneys' fees and
costs.
23. Because the value of $35,000 must be made in terms of what personal value
Kimmel attaches to the money, the decision whether $35,000 is a fair settlement offer
cannot be made simply on the basis of whether the present discounted value of an eighty
percent chance of $65,000 in six months is worth more or less than $35,000.
NEW YORK LAW SCHOOL LAW REVIEW [Vol. 35
it may seem more attractive to drop the maintenance clause and preserve
the negotiations with SafeBet.
If it became generally known that Martino dropped the demand for
a maintenance provision, however, Martino's bargaining position in future
lease deals might be harmed. Potential tenants might assume that if
Martino did not require a maintenance provision in a lease with SafeBet,
Martino is "desperate" for tenants. Such tenants might push Martino for
concessions and make future lease negotiations difficult. How important
is it to Martino to avoid this risk? If Martino believes that the absence
of a maintenance clause in SafeBet's lease will become generally known
and therefore have an impact on future deals, Martino may conclude that
maintaining the demand is of great importance. While Martino might
have to evaluate many other potential consequences before making a final
decision, it should be clear that Martino's subjective evaluation is
essential in assessing which choice is likely to produce maximum client
satisfaction.
Determining which alternative is likely to lead to maximum client
satisfaction cannot be accomplished by reference to an external standard.
Making the best choice involves forecasting the probable economic, social,
psychological, and moral ramifications of a legal decision, and
determining the importance the client attaches to these ramifications.
While you may help a client recognize the probable ramifications of a
decision, only a client can determine their relative importance.
Moreover, as both examples illustrate, rarely are consequences "all
good" or "all bad." Virtually every decision involves trade-offs. For
example, Kimmel's decision to settle in order to regain peace of mind
may cause Kimmel to feel cowardly. Similarly, Martino's dropping the
lease provision to gain a desirable tenant may create anxiety about
possible negative effects on future negotiations. The trade-offs involved
in most decisions reinforce the conclusion that only a client's subjective
values can adequately predict which decision is most likely to produce
maximum satisfaction
24. Clients' values, preferences, and degree of risk aversion do not remain constant.
Rather, they change considerably as the client's life situation changes. Thus, a client who
finds $35,000 an attractive offer today because of a need for capital may have the opposite
reaction a few months later if the client's capital needs have since been met.
1990] LAWYERS AS COUNSELORS
may not occur. Thus, even if Martino abandons the common areas
provision, it does not follow that SafeBet will sign the lease or that
Martino's future negotiating position will be damaged. There is also no
guarantee that if the lease is signed, Martino will receive the projected
net income. These consequences are, to paraphrase Dickens, shadows of
what may be, not shadows of what will be. 2s By conceding to SafeBet,
Martino indicates a willingness to risk a weakened bargaining position
with future tenants. A "different" Martino, who is aware of precisely the
same potential consequences, might be reluctant to take this risk and not
concede to SafeBet. The fact that two clients can predict the same
consequences, yet make different decisions depending on their risk
averseness, militates strongly in favor of clients as primary decision
makers.
You might respond, "I realize that what is best for any client typically
rests on subjective personal values that are unknown to me. But that
doesn't mean I shouldn't make decisions for a client. It just means that
in addition to eliciting the 'facts,' I should also find out about each
client's predictions and values."
Such a response is not entirely without basis. Counseling does consist,
in part, of asking clients about predicted consequences and personal
values. In most cases, however, such an inquiry will not yield a full
understanding of a client's personal values. 26 As stated in the earlier Legal
Interviewing and Counseling: A Client-CenteredApproach:27
25. C. DICKENS, A CHIUsrMAs CAROL 133 (Weathervane Books 1977) (1st ed. 1843).
26. To some degree an exception may exist where the attorney and client know one
another well and have a long term attorney-client relationship. In such a situation, assuming
no recent major changes in the client's life, the attorney may have a reasonable idea about
many of the client's values and preferences.
27. See D. BINDER & S. PRica, supra note 2.
NEW YORK LAW SCHOOL LAW REVIEW [Vol. 35
31. The contract negotiations between the San Diego Padres and pitcher Bruce Hurst
presents an interesting illustration of this phenomenon. See LA Times, Dec. 9, 1988, § III,
at 1, col. 3.
32. The reality is that lawyers often put self-interest before clients' interests. In a
survey of recent developments in legal ethics published by The GeorgetownJournal ofLegal
Ethics, 110 pages were devoted to attorney conflict of interest cases decided within a twelve-
month period. Bellini, Fisher, Gagliano, Grear, Head, Marrone, Reynolds, Ribaudo,
Rothman & Zic, Conflicts ofInterest, 2 GEo. J. LEGAL EmIcs 101 (1988); see also Spiegel,
Lawyering and Client Decisionmaking:Informed Consent and the Legal Profesion,128 U. PA.
L REv.41, 87-104 (1979). Spiegel notes the traditional argument that society may control
disloyal behavior by mechanisms such as "market, legal regulation, and systems of norms,"
but points out that "the theoretical and empirical evidence suggest... these mechanisms
do not effectively control the behavior of lawyers." Id. at 89.
33. See Spiegel, supra note 32, at 65-66.
34. See MODEL RuLEs OF PROFEssIONAL CONDUCT Rule 1.2 (1989) (appearing to
suggest that consultation about each decision is required). Rule 1.2 provides: "[a] lawyer
shall abide by a client's decisions concerning the objectives of representation ... and shall
consult with the client as to the means by which they are to be pursued."However, no legal
scholar with whom we have spoken believes that the American Bar Association (ABA)
actually advocates such a position.
NEW YORK LAW SCHOOL LAW REVIEW [Vol. 35
Undoubtedly, most clients have neither the time nor the financial
resources to hire an attorney under such conditions. Moreover, under such
a requirement the attorney's practice would consist of virtually continual
communication with a small number of clients.
If consultation concerning each decision is unacceptable, how might
you decide which decisions to call to a client's attention? There is no easy
answer to this question. In the past, some authorities attempted to draw
a distinction between "substantive" and "procedural" aspects of cases.
Under this view, lawyers should consult clients concerning decisions that
affect the objectives of representation, but need not do so with decisions
regarding the means by which the objectives were secured3 5 Many courts
continue to echo this distinctions by requiring attorneys to turn37 over
certain kinds of decisions on the basis of "ends-means" reasoning.
A moment's reflection, however, suggests that drawing a meaningful
line based on "ends" and "means" is often impossible,38 because clients
are often concerned about both the results and how they are obtained. To
illustrate, assume that you represent a defendant in a burglary prosecution
and a decision arises about whether to call the client's sister as an alibi
35. Spiegel, The New Model Rules of Professional Conduct: Lawyer-Client Decision
Making and the Role of Rules in Structuringthe Lawyer-Client Dialogue,1980 AM. B. FOUND.
REs. . 1003, 1003-04; cf. Spiegel, supra note 32, at 65-67.
36. See; e., Blanton v. Womancare, 38 Cal. 3d 396, 404-05, 696 P.2d 645, 650-51, 212
Cal. Rptr. 151, 156 (1985) (absent express authority, attorneys do not have implied authority
to enter into contracts on behalf of clients); Linsk v. Linsk, 70 Cal. 2d 272, 278, 449 P.2d
760, 764, 74 Cal. Rptr. 544, 548 (1969) ("if counsel abdicates a substantial right of the
client contrary to express instructions he exceeds his authority"). For similar cases in other
jurisdictions, see 7A CJ.S. Attorney & Client § 3, 193 (1980).
37. Maute,Allocation ofDecisionmakingAuthorityUnderthe ModelRules ofProfessional
Conduct, 17 U.C. DAVIS L REv. 1049, 1061 (1984) ("Dichotomy between means and
objectives gives the profession needed guidance on the allocation of authority, but no bright
lines exist. Sometimes a clear distinction is impossible and 'in many cases the client-lawyer
relationship partakes of a joint undertaking."') (quoting MODEL RULES OF PROFESSIONAL
CONDUCT Rule 1.2 comment 1 (1983)); Spiegel, supra note 32, at 52 (while lawyers have an
affirmative obligation to bring certain decisions to the client, some matters remain under
the lawyer's control); Strauss, Toward a Revised Model of Attorney-Client Relationship: The
Argument for Autonomy, 65 N.C.L REV. 315, 324-26 (1987) (line between means and ends
is "imprecise" and "unworkable").
38. See Spiegel, supra note 32, at 49-65; Strauss, supra note 37, at 318-21. Most court
decisions involve litigation matters rather than transactional matters. How courts would
explore the merits/tactics dichotomy in the transactional area is perhaps unclear. The Model
Rules make a distinction between decisions affecting the objectives of the representation
and the means of obtaining such objectives. The distinction is essentially the old
merits/tactics line drawn by the court and used in the Model Code. See MODEL CODE OF
PROFESSIONAL RESPONSIBILriY EC 7-7 (1981). The ABA now appears to call for client
consultation in both substantive/ends and procedural/means decisions. See supra note 34 and
accompanying text.
1990) LAWYERS AS COUNSELORS
witness. You believe the sister will make an excellent witness, but the
client insists that testifying would cause the sister undue stress and does
not want to call her as a witness. Is the decision whether to call the sister
one of ends or means? If the client's objective is simply to avoid
conviction-to win the trial-the decision about calling the sister is
merely a question of means. If the client's objectives consist of both
avoiding a conviction and preventing unnecessary stress for the sister, the
means-ends dichotomy breaks down.
As an alternative approach, some commentators suggest that at the
beginning of the attorney-client relationship, an attorney should ask a
client on which types of decisions he or she wants consultation 9 This
"waiver" approach is typically inadequate. A client who is legally
sophisticated may have a basis for making an informed choice on which
decisions he or she wishes to be consulted. You may be justified in
relying on such a client's choice, at least when the client asks for frequent
consultation. 40 In those circumstances, a client has repeated opportunities
to reassess the kinds of issues on which he or she wishes to be consulted.
Legally inexperienced clients, however, usually cannot foresee the
twists and turns that even simple matters may take, and cannot know at
what points during the course of a case decisions are likely to arise.
Accordingly, you probably should not rely on an unsophisticated client's
waiver of decision-making responsibility. Moreover, regardless of the
degree of client sophistication, as a client's life situation changes, the
kinds of decisions which a client will view as important, and on which the
client will want consultation, may also change. 41 Thus, any initial guideline
delineating when consultation is desired is often, at best, a "soft" decision
which needs periodic review.
39. See, eg., Epstein, MedicalMalpractice: The Casefor Contract,1976 AM. B. FOUND.
Rus. J. 87.
40. If the client says consultation is necessary only in a narrow range of situations, the
client's decision perhaps should be viewed as less binding. However, difficult situations may
arise if the ease takes an unusual turn or if the client's life situation changes dramatically
in a matter on which no consultation was being given.
41. See supra note 24 and accompanying text.
42. W. PROSSER & R. KEErON, THE LAw OF TORmS § 32 at 185 (5th ed. 1984)
NEW YORK LAW SCHOOL LAW REVIEW [Vol. 35
(providing the general definition of an attorney's duty of care); Budd v. Nixen, 6 Cal. 3d
195, 200, 491 P.2d 433, 436, 98 Cal. Rptr. 849, 852 (1971). This standard is thought to
impose an extra duty on lawyers beyond that imposed on ordinary people. W. PRoSSEtR &
R. KEroN, supra, at 185-86. The extra duty is thought to exist because it is assumed that
lawyers possess special knowledge that lay persons do not. However, if lawyers in the
exercise of their professional tasks are not thorough, the standard of "using skill, etc.
commonly possessed" may provide an escape hatch for the slovenly. For example, what if
most lawyers are so focused on gathering "legally salient information" that they fail to learn
facts which suggest, that common decisions to request continuances may produce adverse
nonlegal ramifications affecting the client? Could the lawyer who fails to acquire
information that would make him or her aware of the potential for such ramifications avoid
liability for breach of duty because most members of the profession also typically fail to
gather such data? These questions, we leave for others to resolve.
43. This standard requires consultation with a client if, measured by the presumed
awareness of the legal community, a decision is likely to have a substantial legal or nonlegal
impact.
44. See W. PROSSER & R. KIaToN, supra note 42, at 186.
45. Little data exists which indicates the kinds of decisions lawyers typically examine
with their clients. However, two small surveys by UCLA law students indicate that lawyers
1990] LAWYERS AS COUNSELORS
working with large corporate clients (those with annual revenues of $20 million or more)
review a wide variety of decisions with the corporate representative with whom they are
working. UCLA School of Law Clinical Survey Report: A Survey Measuring Client
Satisfaction (May 19, 1989); A Survey of Lawyers Who Have Corporate Clients (Spring
1989) (unpublished studies on client counseling available at New York Law School Law
Review). The studies indicate that these consultations occur with some frequency in both
routine and nonroutine litigation and transactional matters. While the studies do not show
why the lawyers consulted their clients, we assume they did so either because of clients'
requests and/or the lawyers' recognition that their clients' input was important. An earlier
survey of members of the Florida Bar indicated that at least in litigation matters, client
consultation was generally infrequent. See Reed, The Lawyer-Clien" A Managed
Relationship?, 12 ACAD. MGMT. J. 67, 76-77 (March 1969). Many factors may explain why
the Florida study reached a different conclusion than the two recent UCLA surveys.
However, for the present, we will assume that the UCLA studies accurately indicate the
behavior of a large segment of the bar.
NEW YORK LAW SCHOOL LAW REVIEW [Vol. 35
46. This is to say that the standard might not require you to permit Gower to make
the decision. You might, of course, choose to apply your own stricter standard and pass the
decision to Gower.
47. Beyond certain matters of legal representation, the client retains sole decision-
making authority. See MODEL CODE OF PROFESSIONAL RESPONSlBILrrY EC 7-7, EC 7-8 (1981);
MODEL RuLEs OF PROFESSIONAL CoNDucr Rules 1.2(a), 1.4(b) (1989).
1990] LAWYERS AS COUNSELORS
48. Note that a decision which requires client consultation does not mean that the
consultation is necessarily lengthy. As seen in section I(E)(3), infra, the extent of the
counseling obligation varies depending upon, among other factors, the complexity of the
decision. Hence, if an attorney thinks that the decision to remove a case to federal court
is so apparent that it lacks complexity, he or she might satisfy the obligation with a
NEW YORK LAW SCHOOL LAWREVIEW [Vol. 35
i. Client Objectives
statement such as, "We have the opportunity to remove this case to federal court, where
it will come to trial within a year. You've said you want to get to trial as soon as possible.
I see no added costs or other disadvantages of removing the case. Do you see any problem
with removing it?"
49. See MODEL RuLEs O' PROFESSIONAL CONDUCT Rules 1.4, 2.1 (1989).
1990] LAWYERS AS COUNSELORS
You almost always must ask clients for their thoughts about potential
solutions. Since problems are rarely purely legal, clients often have
excellent ideas about possible solutions. For example, in thinking about
alternative ways to frame particular lease provisions, a client's experience
in leasing other properties may lead to potential solutions that you would
never have contemplated.
Generally, you must ask clients about the consequences they foresee.
Your legal expertise is insufficient to allow you to predict all of the
consequences specific to a client's individual situation. For example, in
counseling a client about whether to include an insurance-funded buyout
provision in the buy-sell terms of a partnership agreement, you usually
will not know the client well enough to determine all the likely economic,
social, anol psychological consequences that might follow from selecting
such an arrangement. You therefore would need to ask the client about
the probable ramifications of such a provision.
Finally, you must continually ask clients whether they understand what
you are saying and whether they have questions or concerns. Solutions are
likely to be optimal only to the extent clients understand the likely
consequences. Moreover, clients are likely to feel comfortable with results
only to the extent they understand what is being discussed and feel that
the suggested solutions meet as many of their concerns and needs as
possible. Continually encouraging clients to raise concerns and ask
questions enables you to arrive at solutions that are tailored to those
concerns.
50. On some occasions a client may have difficulty articulating objectives and you will
need to spend time helping the client clarify what the objectives are. See T. SHA.FFER & J.
ELKINS, LEGAL INTERVIEWING AND COUNSELING IN A NUrMsELL 73-83 (2d ed. 1987).
NEW YORK LAW SCHOOL LAW REVIEW (Vol. 35
i. Potential Solutions
You typically need to propose solutions because you will see solutions
that a client cannot. Your knowledge of legal doctrine is one resource to
draw on to fashion possible solutions. For example, in a litigation matter
you may suggest pursuing injunctive relief or punitive damages, potential
solutions of which a client may be unaware. 51 You may also draw upon
your professional experience, awareness of human behavior, and
familiarity with the context in which a problem arises to fashion possible
solutions. For example, familiarity with real estate matters may enable you
to offer various rent-fixing formulas used in commercial leasing for a
client's consideration. Similarly, experience in the criminal justice system
may allow you to propose an alternative sentence, such as some type of
community service that permits a client to avoid a jail sentence.
Finally, note that sometimes an ability to see additional solutions is
a product not of greater knowledge, but of greater emotional distance
from a problem.
51. On the other hand, legal rules may require that an attorney eliminate some of a
client's proposed solutions, such as "gun 'em down."
1990] LAWYERS AS COUNSELORS
How far does the obligation to discuss options and alternatives with
a client extend? The question has at least two sub-parts. First, must you
try to counsel a client with respect to every possible option and its likely
consequences? If not, what is the extent of your obligation to develop and
explore options? Second, must you continue a counseling dialogue until
a client actually understands the options and alternatives? If not, how far
towards actual understanding need you go?
In our view, the extent of the obligation to explore a decision with
a client is defined by the following standard:
53. By sophistication we mean the level of experience in the area under consideration.
1990] LAWYERS AS COUNSELORS
54. In adopting the standard of "alternatives and consequences that similarly situated
clients find pivotal or pertinent," we recognize that the standard is not free from ambiguity.
For example, how does one know what "similarly situated" means until one has spent a
considerable period of time with the client and learned who she "really" is?
55. See supra notes 19-32 and accompanying text.
56. Use of a "reasonableness" standard permits defenders of "informed consent" to
place the "ambiguity" label on us as well. We would respond by pointing out that our
standard requires only that the opportunity be reasonable, thus, there is no ambiguity in
terms of whether a client must have actual understanding. See supra note 54 and
accompanying text.
57. In choosing the standard of a "reasonable opportunity," we have consciously
avoided using the common legal standard which requires that a lawyer conduct himself or
herself with such "skill, prudence, and diligence as other members of the profession
commonly possess and exercise."See R. MALLE & V. LEvrr, LEGAL MUPnACnca 317 (2d
ed. 1981). We have avoided this standard for at least two reasons. First, to the extent that
pronouncements such as the Model Rules reflect the current practices of the profession, the
pronouncements seem to ignore the reality that to effectively counsel clients, a lawyer must
elicit information as well as provide it, and must also provide clients with an opportunity to
identify values and risk preferences. See, ag, MODEL RULES OF PROFESSIONAL CONDUCt Rule
2.1 (1989). Second, the little empirical data that We can find on the subject suggests that
lawyers often ignore the essential parts of the counseling process and other important
practices as well. See, eg., Sarat & Felstner, Law and Strategy in the Divorce Lawyer's Office,
20 L & Soc'Y REv. 93, 96 (1986); Neustadter, When Lawyer and Client Meet: Observations
of Interviewingand CounselingBehavior in the Consumer Bankruptcy Office, 35 BUFFALO L.
Rzv. 177, 228-30 (1986).
58. At an early stage of a matter, you may not know enough about a client to
determine how significant a problem is. In case of doubt, you probably should err on the
NEW YORK LAW SCHOOL LAWREVIEW [Vol. 35
have the time, and clients have the desire, time, or money, to completely
evaluate all potential consequences6 A standard that focuses on your own
counseling behavior, and speaks of reasonableness rather than a client's
unknowable mental state, is consistent with these realities.
Thus, a process standard seems to be the best guide to ensuring that
clients genuinely are as knowledgeable as possible of the full range of
available options and likely consequences before they make decisions. By
contrast, definers of "full understanding" or "informed consent"64 may
consume paper as they debate what constitutes that shadowy mental state,
but their definitions provide little guidance as to what should happen
when an attorney sits down to help clients resolve problems.
During counseling, clients often ask for advice about what they should
do. They do so for a variety of reasons, ranging from simply wanting
confirmation of their own choice to feeling such inner conflict that they
cannot make a decision. Client-centered counseling places maximum value
on client decision making. How then, might you respond to clients who
ask for advice about what to do? Can you respond in a way that is
consistent with clients' making decisions that are based upon their
subjective values?
A radical view of the client-centered approach might lead you to
reject requests for advice to avoid influencing decisions. That view,
however, demeans clients' ability to make independent judgments, deprives
clients of the opportunity to get advice from a person who has
professional expertise and emotional distance from a problem, and may
defeat the expectations of most clients. We therefore reject such a radical
position.
Although you ultimately may provide a client with an opinion when
asked, you should do so only after having thoroughly counseled a client,
enabling your opinion to be based upon the client's subjective values, not
your own. Assume that a client, Ms. Gilliger, consults you about
dismissing an employee. The options that have been discussed are firing
the employee and asking the employee to resign with several months
severance pay. When evaluating these options, the consequences Gilliger
deemed most important were supporting the supervisor who gave the
employee a poor evaluation and avoiding a lawsuit by the employee.
63. For a detailed and rich discussion of all the issues that might have to be resolved
to accomplish full understanding, see R. FADEN & T. BEAUCHAMP, supra note 61, at chs. 7-
10.
64. See supra text accompanying notes 56-62.
1990] LAWYERS AS COUNSELORS
Gilliger asks for your opinion about what she ought to do. Given the
values Gilliger espoused during the counseling dialogue, you probably
would advise her that the severance pay option seems best. You might tell
her, "In my opinion, you'd be better off with the severance pay option,
since it would both support the supervisor and minimize the risk of a
lawsuit." 65 You may personally think it is wrong to "pay off' an employee
simply to avoid a lawsuit, but the proffered opinion should reflect the
client's values, not your own. 66
While clients may reveal their values during any phase of the
representation, typically a thorough counseling dialogue is necessary to
provide understanding of a client's values. As clients evaluate options and
consequences during the counseling process, they reveal the values upon
which you may frame an opinion. Hence, you should be extremely
hesitant to give an opinion until a client has been counseled thoroughly.
Sometimes a client's request for an opinion is a request for an
opinion based on your personal values. Such a request may seek the
benefit of your experience. For example, Ms. Gilliger might ask, "What
would you do if you were making this decision?" Or, a client may seek
your "moral" judgment. A client who has decided to disinherit a child, for
instance, might ask if she is "doing the right thing." For the reasons
previously noted,6 7 client-centered lawyering suggests that you provide
such clients with opinions based on your personal values. 68
65. On the other hand, had Ms. Gilliger emphasized her desire to "make an example
of the employee to all others, no matter what the cost," you might have suggested the firing
option.
66. After you give an opinion based on a client's values, a client may press further.
"Is that what you would do if you were in my place?" In these circumstances, you might
appropriately regard the question as a request for an opinion based on your personal values.
The client's question really is, "What factors do you think are most important?" Again,
providing your opinion is consistent with client-centered lawyering. If you regard clients as
autonomous individuals, you must respect their desire for a personal opinion. However, you
should not initially state your opinion. When a client asks what you would do if you were
in the client's place, the client should first be taken through a full counseling dialogue to
help the client realize what her own values are in the specific problem context. That
dialogue alone may clarify a client's thoughts enough that the client no longer needs to
know what decision you personally would make. If a client continues to seek your personal
opinion, however, you may state what your decision would be as well as the values upon
which it is based. By first eliciting a client's values, and then stating your own values, you
help a client realize that to the extent the client's values differ from yours, so might a
client's decision. For example, had Ms. Gilliger asked for your personal values, you might
have responded, "Frankly, if it were me, I'd fire the employee outright. I personally do not
like to pay off people who have done a bad job. However, since you strongly want to avoid
a lawsuit, you may not want to do what I would do."
67. See supra note 66.
68. In some instances, you may have difficulty determining whether a client is asking
for advice based on the client's values or whether the client is asking for your "moral"
NEW YORK LAW SCHOOL LAW REVIEW [Vol. 35
5. Intervening in Clients' Decisions
views. Phrasing your moral advice in a manner that allows a client to hear it, but not be
overwhelmed by this judgment, often requires considerable interpersonal skill.
69. Our focus is primarily on a general attitude toward intervention.
70. Of course, disagreement could be founded on a combination of these two grounds
of assessment.
71. See supra section I(C)(1).
1990] LAWYERS AS COUNSELORS
familiarity with Mr. Benizi and his likely reaction than do you, and is
arguably in a much better position to predict her husband's response.
Nonetheless, you might believe that Mrs. Benizi's prediction is erroneous;
husbands who leave their wives usually do not return because their wives
accede to divorce proposals. Thus, you need not accept Mrs. Benizi's
decision to accede to her husband's offer. Rather, you may point out to
her that her forecast is probably wrong and it is unlikely to produce the
result she wants.72
Mispredictions such as Mrs. Benizi's are common. Research suggests
that people routinely employ fallacious reasoning strategies.Y Because
legal problems are rarely routine for clients, their emotional reactions are
likely to further cloud their predictive capacities. Mechanistic acceptance
of clients' forecasts often will fail to produce a satisfactory solution. Of
course, when you do point out a client's erroneous prediction, the
comments should be presented in a way that maintains a client's
self-esteem. A client must be able to "hear" what you have to say.74
More difficult considerations come into play when you disagree with
a decision because you do not approve of the values embedded in a
client's choice. When a client such as Mrs. Benizi mispredicts the likely
consequences of a decision, you may base personal disagreement on logic
and experience. But when a client makes a decision based on value
preferences that conflict with yours, you cannot ground the disagreement
in the client's logical mistake. Disagreement nakedly asserts that your
values, not the client's, are more important. Unless a client's decision
violates the law or is clearly immoral, principles of client autonomy
suggest that client values prevail.
Nonetheless, client centeredness does not prevent you from expressing
values that conflict with those of a client. You do not completely
surrender autonomy by becoming a lawyer, and some clients may
appreciate and benefit from knowing about competing values. 75 Client
72. Be hesitant to voice disagreement if your predictive database is little better than
a client's.
73. For a detailed account of common predictive errors, see R. NisnEr & L. Ross,
HUMAN INFERENCE STRATEGIES AND SHORTCOMINGS OF SOCIAL JUDGMENT 228-48 (1980);
Tversky & Kahneman, Judgment Under Uncertainty:Heuristics and Biases, in D. KAHNmAN,
P. SLOVIC, A. TVERSKY, JUDGMENT UNDER UNCERTAINTY: HEURISTICS AND BIASES 3-20 (1982)
[hereinafter HEURISTICS AND BIASES].
74. Pointing out such an error in a manner that allows the client to hear what you
have to say requires substantial interpersonal skill.
75. Indeed, the Model Code indicates that many clients will appreciate knowing that
their values conflict with their attorney's. See MODEL CODE OF PROFESSIONAL RESPONSIBILrIY
NEW YORK LAW SCHOOL LAWREPYEW [Vol. 35
EC 7-8 (1981); see also T. SHrA"ER & R. ELKYNs, supra note 50, at 290-92 (since the morals
of the lawyer always affect the decision-making process, the lawyer should articulate and
expose these influences in order to achieve client self-determination and openness in the
lawyer-client relationship).
1990] LAWYERS AS COUNSELORS
7
choice? 1
A "yes" response is consistent with client centeredness and
professional autonomy. Your interest in furthering society's interests
through your law practice allows you to raise moral concerns. This may
be accomplished by first recognizing the legitimacy of Lynn's values:
"maximizing Magic's profits and protecting its shareholders are important
considerations." Then, you can ask Lynn to consider how Community
promotes the social good, how his decision is likely to affect Community,
and whether Community's interests in this instance ought to trump
Magic's. If Lynn resists considering your concerns, Lynn's views should
prevail unless you intend to ask Lynn to seek other counsel or withdraw
(assuming ethical rules permit you to do so).77
"Frequency" raises the difficult question of how often you should
voice disagreement over values. A client may make a number of decisions
that impugn your personal values. In the Magic Properties case, Lynn
might want you to pursue a "take no prisoners" litigation strategy, while
you think the public interest is better served when attorneys adopt a
cooperative style. Similarly, Lynn may ask you to draft a new agreement
leasing the space formerly occupied by Community to an organization
(e.g., a producer of chemicals which increase pollution, a pro- or anti-
abortion group, the local branch of the Socialist Party, etc.) with whose
values you disagree.
Should you voice personal values whenever clients make decisions
that concern you morally? A "yes" response is likely to turn you into
something of a "moral know-it-all," regularly converting client dialogues
into morality plays. Undoubtedly, few clients want attorneys to conduct
regular moral checkups. While we have no gauge by which to measure
how frequently moral concerns should be voiced, we believe attorneys
should do so sparingly. If you do raise moral concerns, and a client rejects
them, the choices are to accede to the client, to ask a client voluntarily
to seek other counsel, or to withdraw.
76. Of course, where the action a client proposes to take is illegal or even runs the
risk of being found illegal, an attorney must point out such illegality to the client. See
MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.2(d) (1989) (discussing the consequences
of a client's proposed criminal or fraudulent activity is valid, however, it should not be
assisted or counseled); MODEL CODE OF PROFESSIONAL REsPONSrOILrrY DR 7-102(A)(7)
(1981) (precluding a lawyer from counseling or assisting a client's illegal or fraudulent
conduct); id. at DR 7-106(A) (lawyer should not advise a client to disregard a tribunal's
ruling or rules); id. at EC 7-5 (lawyer should not assist or promote a client's illegal activity).
77. See Strauss, supra note 37, at 333; MODEL CODE OF PROFESSIONAL RESPONSIBILrIY
DR 2-110(B), (C) (1981) (outlining mandatory and permissive grounds for a lawyer's
withdrawal); MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.16 (1989) (outlining grounds
for declining or terminating representation).
NEW YORK LAW SCHOOL LAWREJIEW [Vol. 35
i. Risk Averseness
78. See M. McCoRMACK, THE TERRIBLE TKRrmH ABoUr LAWYERS 111-12 (1987); R.
RINGER, LOOKING OuT FOR NUMBER ONE 197-204 (1977).
79. Documenting advice may forestall later malpractice claims.
80. We of course would make exceptions for clients who are not fully competent. See
MODEL CODE OF PROFESSIONAL RESPONSIBILrry EC 7-11 (1981) (lawyer's responsibility
fluctuates depending upon client's experience and mental condition); id. at EC 7-12 (if a
client's mental or physical condition requires, a guardian or the lawyer may make decisions
on the client's behalf).
1990] LAWYERS AS COUNSELORS
risk is what many lawyers and business people would call a "business
risk." 81 Unless Bilt has grossly mispredicted the likelihood that the land
will be unbuildable, the risk is Landview's to take.n
81. See A Businessman's View of Lawyers, 33 Bus. LAw. 817, 825 (1978) (program
sponsored by the ABA Section of Corporation, Banking, and Business Law, Aug. 9, 1977);
Donnell, Reflections of Corporate Counsel in a Two-Way Mirror, 22 Bus. LAw. 991, 1001-
03 (1967).
82. In many cases, you may find it difficult to determine whether your disagreement
with a client's decision emanates from a client's misprediction of likely consequences, or
from a client being less risk-averse than you. You may tend to combine the two criteria,
believing that "the reason the client wants to go ahead is because the client is mispredicting
the consequences."Because misprediction may result in explicitly telling a client that you
believe the client is wrong, you should not treat disagreement as a problem of misprediction
without solid evidence. For example, unless you have some expertise in soils engineering,
or unless Bilt's statements indicate that he has misunderstood the report of Landview's soils
engineer, you probably should not regard his desire to go forward with the purchase as a
problem of misprediction.
83. For a greater exploration of conflicts concerning professional standards, see
Spiegel, supra note 32, at 113-20.
NEW YORK LAW SCHOOL L4W REPIEW [Vol. 35
recognized:
Client: I just don't know. Metal's president (Marsh) has been around
a long time and he may be really offended if we start talking
about personal guarantees. It's hard to know how he'll react.
Client: I guess that's right, but on the other hand, if we don't have
the guarantees, the size of our financial risk is pretty big and
the board may be unhappy.
94. Note that you are neutral only with respect to specific options. As our book's
emphasis on the value of rapport makes clear, you certainly need not be neutral with
respect to broader matters such as interest in clients and a willingness to help resolve their
problems. You also need not be neutral when a client's decision raises moral concerns.
95. A well-known sociological text refers to such people as "other-directed people."See
D. RiESMAN, THa LONELY CRowD -A STUDY OF THE CHANGING AmduRICAN CHARACrER 9,
19-25 (1950).
96. Two scholars have pointed out that consistently maintaining such an appearance
may be impossible. T. SHApPR. & J. ELuuNs, supra note 50, at 131-32.
1990] LAWYERS AS COUNSELORS
Attorney: Jan, next you need to decide who you want to appoint as the
guardian for your children should something happen to you.
What we can do is talk about what qualities you are looking
for in a guardian, the two kinds of guardians for which the
law provides, and the possible candidates for each kind.
Maybe you already have someone in mind. Even if you do,
I'll ask you to consider all possible candidates and the pros
and cons of each. This will give you a solid basis for whatever
decision you ultimately make. Does that make sense?
Jan, like most clients, cannot know which choice is most likely to be
satisfactory unless Jan first understands the available options. For
example, Jan cannot make a sensible decision about a guardian unless Jan
knows that a guardian of the person is different from a guardian of the
estate, and that they may be different people.
Options often are not apparent until clients understand and verbalize
their objectives. For example, assume Jan states, "It's really important to
me that the children continue to be raised in the same religion." That
objective might make some guardianship possibilities apparent even as it
eliminates others.97 Hence, the first step in a counseling dialogue often
97. Clarifying the goals at the outset, however, often does no more than start you
NEW YORK LAW SCHOOL LAW REVIEW [Vol. 35
thinking about the most promising set of alternatives. Sometimes the goals the client
initially describes are not the only ones the client deems as important. For example, later
in the process when discussing the likely consequences of a particular option, the client may
discover additional goals which are more significant. For instance, alternatives that are most
likely to avoid co-employee discontent may also turn out to be expensive alternatives.
When the likely expense becomes clear, the client may wish to restate his or her goals to
include a termination which avoids office discontent and which does not create great
expense. When this additional goal becomes clear, a refraining of alternatives may be
necessary.
98. The fact that clients' objectives may change as matters progress also supports the
need for a Step One foray into objectives.
99. When an implementing decision is particularly legal in character, the attorney may
be the one who identifies what objectives can be achieved by making that decision. For
example, it usually makes little sense to ask clients what objectives they can attain by taking
depositions rather than sending out interrogatories.
1990] LAWYERS AS COUNSELORS
Once a client's objectives are out in the open, the second step is to
identify alternatives. For example, assume that Jim owns a business and
seeks your help in reestablishing harmony in a poorly managed
department. You can start this step with a brief preparatory alert:
"Okay, Jim, let's turn to what choices might help you attain your
objectives." You should then take the lead in articulating options. For
100. Use of the T-funnel technique entails initially probing a client's recollection of
an event or topic with open questions in order to elicit information from a client's frame
of reference. Then, when a client's recollection appears exhausted, you follow up with
closed questions in an effort to uncover additional data. The technique is explored in detail
in Chapter 10 of Lawyers as Counselors.D. BINDER, P. BERGMAN & S. PRicn, supra note 1.
101. Encouraging unstructured narration may stimulate a client's memory. D. BINDER
& S. PRicE, supra note 2, at 92.
NEW YORKLAWSCJOOL LAWREVIEW [Val, 35
example, you might state, "Jim, the options I see are to fire Mr. Frankel
(the manager), to transfer him to a different department, or to give him
what we call a 'golden handshake."'
Clients often are frustrated if Step Two begins by your requesting
alternatives they have contemplated. A client may doubt your competence,
reacting internally by asking, "Why are you inquiring about options?
That's what I hired you for." Furthermore, when you finally voice your
thoughts, a client may feel you are "playing games." A client may wonder
why you did not reveal your opinions in the first place.'02
A client's greater familiarity with the context in which a problem
arises may enable the client to identify options you might never have
thought of. Therefore, after you have mentioned alternatives, you should
invite the client's thoughts on other potential alternatives."'° For example,
you might ask Jim, "These are the alternatives I see. You probably have
some others in mind and I'd like to hear them. Please bring up any
possibility you see since, in the end, the decision has to be one with
which you feel comfortable."
However, if a client is far more likely than you to know about
available options, or if a client already has indicated that he has a
particular solution in mind, Step Two might start by asking the client to
lead off the identification of options. Assume, for example, you are
defending a client who operates a small business and who has consulted
you about whether to borrow money to make a settlement offer. The
client probably will understand that she should have more ideas about
possible funding sources than you, and thus should not be put off if you
look first to the client for ideas. For instance, the client knows what
lending institutions she has dealt with and which relatives and friends
might be "hit up." Thus, you might start Step Two by saying something
like, "Now that we can see that a settlement offer of $50,000 might make
sense, let's get back to your questions about borrowing the $50,000. Let's
start with the possibilities you see. What sources might be able to lend
you all or some of the money?"' 1 4
102. In earlier discussions a client may have identified an option or two. For example,
Jim might have suggested the possibility of firing the employee. In such instances, the
attorney might show "recognition" by identifying an option as one the client first mentioned:
"Jim, as you mentioned earlier, one option is to fire Mr. Frankel. The others I see are..
103. Similarly, clients who are overly deferential to authority figures may not mention
an option unless you specifically invite them to do so. The upshot of failing to invite options
may be that perfectly sensible options never come to light and that the client does not pay
full attention to those you identify.
104. Whether you start with your alternatives or those of a client, you discharge your
role as a client-centered counselor. Under both approaches, you actively involve a client in
the process of exploring potential solutions.
1990] LAWYERS AS COUNSELORS
105. But see generally Symposhm.. Probability and Inference in the Law of Evidence, 66
NEW YORK LAW SCHOOL LAW REVIEW [Vol. 35
adopting a particular solution. Just as you generally have the better data
base for predicting legal consequences, a client often has the better data
base for predicting nonlegal effects. Clients probably will have a better
idea of the likely economic effects on their companies when employees
take time away from their regular duties to participate in discovery and
prepare for trial, the likely social effects of suing a defendant who has an
exemplary reputation in the community, and the likely psychological
effects of accepting settlement offers after previously having stated to
friends that they would go "all the way to trial." Therefore, you often
should rely on clients to predict nonlegal consequences.108
At the same time, your own experiences may enable you to predict,
or at least inquire about, nonlegal consequences. For example, when it
comes to recognizing how the business operations of a retail merchant
whose rent is tied to the Consumer Price Index might be affected by
fluctuations in the Index, or the psychological consequences such as the
potential degree of stress that a long trial can create, you may contribute
valuable insights to a client's thinking about nonlegal consequences.
108. This point underscores our belief that counseling is a two-way street and thus,
information must flow from the client to you as well as in the other direction.
NEW YORK LAW SCHOOL LAW REVIEW [Vol. 35
client the choice of which option to discuss first. It also tends to motivate
a client to participate actively, as the client can select whichever option
seems most appealing.
(2) "What are the pros and cons you see in including such a clause?"
(3) "Maybe we should begin with outlining what problems you see in
including an arbitration provision."
109. Remember this is a general approach, not a recipe to be strictly followed. For
example, if a client is extremely naive, nervous, or unfamiliar with the legal system, you
might consider beginning the discussion of pros and cons yourself. Similarly, if a client
indicates interest in legal consequences, or if you think legal consequences will predominate
in a client's thinking, you may begin by predicting legal outcomes.
1990] LAWYERS AS COUNSELORS
burned."
The familiar T-funnel questioning pattern is well-suited to obtaining
a client's full input.11o Through open questions, you attempt to uncover all
the consequences a client can identify. Then, through closed questions,
you see whether a client "recognizes" other possibilities."' The topics
selected for closed questions are consequences that similarly situated
clients commonly find pivotal or pertinent.
Consider this example of T-funnel questioning to elicit the
consequences a client foresees. Assume that the client, Doug, is exploring
who he should appoint in his will as guardian for his children, ages seven
and five. Doug's alternatives are his sister, Helen, and his brother, Bob.
The option Doug has selected to discuss first is his sister.
Attorney: Doug, what are the advantages you see in appointing Helen?
Client: Well, she will be able to spend more time with the children
and the children know her better. Also, I think it'll be less of
an economic imposition on her than it would be on Bob.
Attorney: Those are important points. I can see you've given this
careful thought. What other advantages do you see?
Attorney: Okay. Here are some other factors you may want to consider.
Are there any differences as far as ability to manage the
children's assets might be concerned?
Client: Well, Helen's not so great with money matters, but her
You use only open questions at the commencement, giving Doug the
opportunity to list all of his reasons. Your first response gives recognition,
followed by an active listening response and the summary technique. Your
last two questions demonstrate the turn to closed questions. In exploring
issues of common concern when selecting a guardian (friendships and
money management ability), you search for other consequences the client
might want to evaluate. The closed questions do not specifically seek pros
or cons. That is, you identify the topic "managing assets" rather than
asking, "Would the ability to manage assets be a pro of choosing Helen?"
The latter type of question may suggest that Helen is a better money
manager, rendering it non-neutral.
Since the closed questions do not specifically seek pros or cons,
clients' responses may be unclear as to how they regard a consequence.
For example, it is not clear that Doug considers Helen's weakness with
money matters a con of choosing Helen. If you are uncertain, a clarifying
question that attempts to convert an ambiguous response into a pro or
con may be asked.
Client: Well, if they sign a guarantee they will have a real incentive
to make sure the business turns a profit. I know $1500 a
month may not be that much, but if you think in terms of a
five-year lease, there is real incentive for them to pay
attention to the operation. Also, since most of our money
comes from the percentage of the gross, I want a tenant
where top management will pay attention to what is going
on. If we take Radio Hut, we just won't get that.
Client: It's the kind of customers that Exotic will attract to the
center. The quality of Exotic's merchandise is better than
Radio Hut's, and therefore the kind of customer they will
attract will have more money to spend in all the stores.
This dialogue illustrates structure and flexibility. You initially ask the
client which option he wants to discuss first, and then pursue the
advantages of the client's favored option. Your last statement stays with
the topic of advantages of the initial option, even though Gomez
concluded with a negative of a different option. This choice to stay with
the original option seems sound. As the option was the one the client
initially favored, failure to switch does not seem to represent an overly
structured response. Moreover, the decision not to switch does not violate
neutrality principles since your last statement first acknowledges the
1990] LAWYERS AS COUNSELORS
When the client switches from the pros of Exotic to the pros of
Radio, you follow the switch. Doing so abandons a systematic
examination of the pros of leasing to Exotic in favor of the pros of
renting to Radio. This switch also seems appropriate. The client has
switched from the initial option of Exotic to Radio, and in addition has
crossed over to the pros and the cons of Radio. Arguably, this switch
indicates the client's considerable interest in thinking about Radio, and
neutrality suggests that for the moment you should avoid a structured
approach.
Attorney: So another pro for Radio is that their sales figures are likely
to be more reliable, and hence, it will be easier to know if
the percentage rent figures are correct.
Client: Exactly.
Having switched to the advantages of Radio, you stay with this topic
until the client's last statement indicates he can see no more advantages.
The client has identified pros favoring Radio, which you acknowledge. In
acknowledging these pros, however, you do not cross over to note
Gomez's implied negatives of selecting Exotic. Is this failure a mistake?
Probably not. We know of no reason for articulating a crossover every
time a client's articulation of a consequence implies such.
NEW YORK LAW SCHOOL LAW REVIEW [Vol. 35
Attorney: How about going ahead with Exotic without any personal
guarantees? What advantages there?
Attorney: Okay, now that we've talked about each of the options, let's
make sure that we've c6nsidered all the possible
consequences of each. Maybe we can start by finishing up the
option of insisting on personal guarantees from Exotic's
officers. As far as the pros of that option go, we listed your
belief that the top management will pay close attention to
business operations, and that Exotic is likely to attract more
affluent customers. Now, another one that may be so obvious
that you didn't bother to mention it is that personal
guarantees offer extra protection should Exotic itself default
1990] ]LA,41YERS AS COUNSELORS
Client: Sure.
Attorney: All right. Now let me ask you some additional questions
about potential advantages of insisting on guarantees. Should
Montoya decide to sell the shopping center during the term
of Exotic's lease, would having guarantees make a sale more
attractive?
Client: Given the size of the center, the variety of the tenants, and
the lease provisions, I don't think so.
Attorney: Would having guarantees in this instance help your
negotiating stance with respect to other prospective tenants?
Attorney: Okay, we'll list that as another pro. How about... (further
lower-T dialogue concerning pros of Exotic omitted).
Attorney: Now let's turn for a moment to the possible cons of insisting
on personal guarantees. So far, we don't seem to have
anything down. Can you think of any?
Client: Not right off; I guess that's why I kind of favor this option.
Attorney: Perhaps that's the option you'll end up with. But just to make
sure, let me play the devil's advocate and ask you a couple
of questions. Might insisting on guarantees poison your long-
term relationship with Exotic?
Client: Well again, Helen seems best on this one. She lives close to
us so the kids could go to the same school. Bob, on the other
hand, lives out of state. The kids, however, seem to like Bob
more, even though they know Helen better. It's tough-
maybe the move wouldn't be too upsetting.
Attorney: Perhaps in the long run the children might feel more
comfortable with Bob?
Client: That's a real possibility. He's farther away but they relate
better to him. Maybe I've been trying to avoid facing this
fact.
Attorney: Doug, I sense this isn't an easy choice to make and I'm glad
we are taking this time to go through it. Your conclusion,
however, is that while a pro of choosing Helen is that the
children could maintain their current contacts, an even
stronger pro is that in the long term, the children will feel
more comfortable dealing with Bob. Is that correct?
NEW YORK LAW SCHOOL LAWREV7EW [Vol. 35
Attorney: There is one legal point I should throw in here, but I'm not
sure how important it is. It concerns the necessity of posting
a bond. Because your brother lives out of state, the court is
probably going to require him to post a bond if he is
appointed guardian. It's to ensure that if he were to
mismanage the kids' money or run off with it, the kids won't
be left empty-handed.
114. Of course, a dry transcript does not permit a full assessment of neutrality,
especially since nonverbal cues such as body language and facial cues often undercut verbal
messages. For instance, holding your nose while continuing to ask a client for pros of an
option probably suggests rejection of the client's input.
1990] LAWYERS AS COUNSELORS
Attorney: I'm afraid its quite likely. Under our state's law, you can
waive a bond for a resident, but with nonresidents, the court
has discretion to require bonds and they usually do. That
distinction may not make sense, but that's the way things are.
A bond would cost about one and one-half percent of the
total value of the property. The bond premium would be paid
out of the money you left to the children.
This dialogue excerpt illustrates how advice giving often requires both
legal and nonlegal knowledge. Legal expertise signals a need for a bond,
while nonlegal expertise allows an indication of its economic costs.
Client: Are there any other legal requirements that might make a
difference?
115. Jargon, in this context, is a term that refers to the many legal abstractions to
which training and experience give content, but which are often meaningles to clients. For
example, think about how you might explain the following terms: "cause of action," "trust,"
"deposition," and "security interest."If there is difficulty, it is because these terms refer more
to concepts than to physical realities. You must be able to understand and communicate
the underlying meaning of such terms if you are to counsel effectively.
NEW YORK LAW SCHOOL LAWREVIEW [Vol. 35
Attorney: No, it could all be done by mail. Okay, with the legalities of
posting a bond and filing an accounting in mind, let's go back
to the practical pros and cons. What else do you see as a pro
.. .
Exotic Exotic
Guarantees Waive Guarantees Radio Hut
Pro J Con Pro I Con Pro ICon
I I I
With alternatives and consequences fully flushed out, you and a client
are ready for Step Four: making a decision. Often, you need do no more
than ask for a client's choice:
Attorney: Doug, we've gotten everything out. Who do you want to
name as your first choice of guardian, Helen or Bob?
118. See Miller, The MagicalNumber Seven, Plus or Minus Two: Some Limits on Our
Capacityfor ProcessingInformation, 63 PSYCHOLOGY Rav. 81 (1956); Simon, How Big Is a
Chunk?, 183 ScieNcz 482 (1974).
NEW YORK LAW SCHOOL LAWREVIEW [Vol. 35
You'll notice that under the waiver option, we've listed three
advantages ....
Other times, as noted, some clients will respond by asking for time
to "think it over." Assuming time permits, such clients can be given a
chart, a handshake, and another appointment.
III. CONCLUSION