The Rules of Professional Conduct establish the ethical obligations of attorneys – to clients, adversaries, the court and the public at large. Rule of Professional Conduct 2.1 expressly provides that lawyers are “advisors” to their clients. The Comments to this Rule include the following:
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 permits. However, a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.
Advice couched in narrow legal terms may be of little value to a client, especially where practical considerations, such as cost or effects on other people, are predominant. Purely technical legal advice, therefore, can sometimes be inadequate. It is proper for a lawyer to refer to relevant moral and ethical considerations in giving advice. Although a lawyer is not a moral advisor as such, moral and ethical considerations impinge upon most legal questions and may decisively influence how the law will be applied.
Having now practiced law for more than 30 years, I realize that I enjoy being an advisor to my clients just as much as I enjoy being their advocate. Interestingly, there is very little attention paid to this important aspect of lawyering during law school. Likewise, many young lawyers find themselves in positions where they are not exposed to clients — and therefore do not acquire the skill or experience necessary to be good advisors.
The skills necessary to be a good advocate do not necessarily make for a good advisor. A client should look for an attorney who is skilled at both advocacy and advising. It is absolutely critical for a client to have confidence that his or her counsel is providing good, honest, candid advice.
Over the years, I have had occasion to observe outstanding advocates who give terrible advice, usually because it is conflicted or completely lacking in candor. These are the colleagues I would never refer clients or friends to, even though they are excellent technical litigators. In my view, a client should look for an attorney who is candid, understands the client’s situation, demonstrates that he or she is committed to obtaining the best result for the client and has the skill and experience to obtain that result.