Legal ethics question...

Factual Questions
1

Is there a legal ethics equivalent to the medical “First, do no harm”?

What I mean is, are attorney’s ethically expected to, say, start small and work up in assisting a client to achieve a particular goal?

Let me try again… lets say a client is pretty low income. The client has to borrow to even engage the attorney. This client is having a problem with someone, doesn’t matter who. There are any number of ways to approach the problem, starting with writing a letter or making a phone call, all the way to filing a lawsuit. The client has all the legal rights in this problem, he just needs a lawyer to help him assert those rights.

Is the attorney expected, ethically, to try to resolve the problem first by the less expensive and drastic options available?

And if you don’t know the answer to this question exactly, can you at least help me think of what words and concepts might apply for me to search on in ethical guides? I’ve been searching and I don’t even know what phrases to use.

2

It’s not an ethics issue at all, per se. What an attorney does is the following:

  1. Determine the facts of the situation as best can be made out from the information available (at the beginning, this is based upon what is provided by the client).

  2. Find out what the client’s goal is.

  3. Offer a range of choices to the client for effectuating that goal/those goals.

  4. Take whatever decision the client makes and carry it out (assuming the client’s directions are lawful and ethical).
    As you can see, what the attorney does is what the client requests. No attorney simply acts without instruction from the client on how to proceed.

As for the ethics, here are the California State Bar Rules of Professional Conduct. These are not the complete word on ethical behavior (there are some statutes which apply as well), but they cover the basics pretty well.

3

That’s fine in theory, but stay tuned to this thread and you might see that this isn’t always the case in practice. I’ve had several occasions to engage attorneys on both sides of the pond, and in about 50% of those cases the attorneys have very much not done what I instructed, and several of them did act without instruction.

As with every other relationship, it is up to the client to be very clear about what he wants. If the OP wants a certain action but not another, it is his or her responsibility to spell that out, preferably with a written backup. There is no mandate for a lawyer to start out with the most economical course of action and work his or her way up, but if that’s what the client wants that’s what should happen.

4

This is a question I am starting to think about because I help some people on legal plans where the Legal Plan pays the attorney fees but not the costs.

I’m starting to wonder what happens when a I think a client should incur a cost (e.g., take the deposition of a major player, or get a subpoena for documents, or file some kind of motion) but the client does not want to or cannot afford to incur the cost of doing so (e.g., court reporter, deposition transcript, photocopy costs).

I am not going to incur the costs for clients nor will I loan clients the money. These are not contingency fee arrangements.

One attorney I spoke to about it says I should withdraw in those kinds of cases because I cannot do my job as a result of the client’s lack of funds. However, I don’t see an ethical problem of continuing the representation with the written understanding that I will not be able to do things that will help the client due to the inability to incur costs in ways that may help their case.

However, I can see a hypothetical case where the client refuses or cannot afford to incur costs, and this perhaps leads to their losing the case. Perhaps somewhere down the line, the “smoking gun” document will turn up after the fact and the client wishes they had that document available before trial.

Perhaps an adverse judgment against my client could have been avoided if only the client had been willing to cough up $20 in copy costs on a subpoena for business records. Now, but for a lack of $20, they are held liable for $200,000. (This is all hypothetical BTW).

This, rightly or wrongly, opens the attorney up for a potential malpractice claim. I can see where an attorney might want to withdraw in cases where the client cannot or won’t pay the costs to do what it may take to win. I would guess the attorney should write a CYA letter to the client confirming that the client is unwilling or unable to pay any costs, this results in a lack of discovery, etc., which could result in the client’s losing the case.

I don’t know the answer.

5

As far as the OP goes, if the OP wanted to try to resolve a dispute through an attorney, but do so short of litigation, then the OP could retain the attorney for pre-litigation services only where the attorney fee agreement expressly excludes all litigation services.

Then, if the problem demands litigation, draw up a new fee agreement or amend the old one to include litigation.

Once litigation commences, however, there are rules (in CA anyway) stating, essentially, that the attorney has the right to develop and implement the attorney’s litigation strategy without the client’s attempts at interference by “playing attorney” and mucking things up. Check the rules in your jurisdiction.

However, if the client does not like the attorney’s methods, then the client can fire the attorney. However, again, if a client has been through one or more attorneys on a case, other prospective attorneys will be reluctant to take on the case because the client will be seen as a “problem client.”

6

In my limited experience I have not been given a choice as to what costs were incurred. I went through a divorce in the UK in which nothing was happening for months, and yet each time I’d call to ask the secretary what was happening I was billed at the lawyer’s rates for speaking with her. I did point out that if I hadn’t been told to expect something which then didn’t happen I wouldn’t have been calling, but that didn’t work for me. I ended up filing a complaint. After months of investigation it was found the lawyers had actually done nothing wrong. Imagine my surprise.

In my latest episode with the World O’ Lawyers I hired a lawyer to find out what was going on with an inheritance my mother left me. Before anything happened I was asked to sign a contract saying I would pay all fees, etc. I signed the contract, but I made it clear that I wanted to be notified before any action was taken. The lawyer reluctantly agreed, but she acted as if I were being hugely unreasonable. I thought not, since I was paying the bill.

It’s a very murky area. And of course few people are going to have the nerve to sue a lawyer, no matter what goes wrong.

7

Well, I will simply say this: any attorney who takes an action which you did not expressly or impliedly authorize on your behalf has committed malpractice, and is also potentially in trouble ethically. You have to be clear when you hire one; if you don’t establish that you want to have control over what is done (and many clients don’t want control over the day to day stuff), then you cannot complain if things are done that you didn’t expressly authorize.

Now, my clients were almost uniformly insurance companies or adjusting agencies (working on behalf of self-insured or legally uninsured employers). You had best damn well bet that I didn’t do anything that wasn’t expressly approved ahead of time. I liked having my bills paid without dispute (not to mention getting additional cases from my clientele). In the few instances I represented individual clients, I practiced the same way.

8

For the record, this brings up a small drawback, one that I firmly believe is dwarfed by the upside, but it’s something to be aware of.

I currently have legal representation regarding a personal matter, and my attorney is very careful about getting my input before taking any actions. Not, y’know, excessively careful; it’s a professional degree of caution, I think.

And I’ll admit, it is sometimes mildly annoying to go back and forth a few times on the wording of a document, if I have questions or comments. This creates a delay in the production/release of the document, and also adds to the attorney’s timecard and increases the bill I pay each month. But on the rare occasions I feel a slight flare of irritation (“again with the draft?”), I remind myself that the alternative would be significantly worse.

(Actually, I used to do clerical work at a law firm, including unofficial “legal secretary” stuff, so I can confirm firsthand that having a nervous nelly is vastly preferable to having a loose cannon.)

I suppose it’s plausible that an unethical attorney could use this arrangement to pad the bill (“I changed a comma on page four, please review draft again, that’s another hour of my time, an hour of the paralegal’s time, and additional copying expense”), but based on my up-close experience I’d say this doesn’t happen very often. That was, however, twenty years ago ( :eek: ), so I’d defer on this point to legal Dopers with more current experience.

9

>Is there a legal ethics equivalent to the medical “First, do no harm”?

Answering a more primitive interpretation of this question, which I do understand wasn’t the point of the OP:

You can’t go to your doctor to give somebody else medical problems.

Therefore, in this specific sense, the two fields, or at least medicine and civil law, seem to me to represent opposite poles.

10

From the Model Rules of Professional Conduct:

http://www.abanet.org/cpr/mrpc/rule_1_4.html (Emphasis added.)

http://www.abanet.org/cpr/mrpc/rule_1_0.html

http://www.abanet.org/cpr/mrpc/rule_1_2.html

So no, the lawyer isn’t required to start small–he’s required to discuss the options with the client and, within the bounds of the law, let the client decide what measures to take. That doesn’t mean the client gets to make objections at trial or insist on harassing discovery, but it does mean the client gets to decide whether the lawyer starts with a letter or a complaint. I’ve used phased retainer agreements and hybrid fee structures to manage this sort of thing. So it’s $300 if I write no more than three letters and we don’t have to file suit; if we go to court, it’s a $3000 retainer and x/hr against the retainer.

11

Suppose a potential client goes to a lawyer and hires him for a relatively simple service, let’s use a simple will as an example. The client asks his lawyer, “what’s the best way to handle this?” Is the lawyer ethically obligated to tell his client, “Actually this is a simple matter you can handle yourself. You can buy a ten dollar book that’ll explain the procedure and you’ll pay a twenty dollar registration fee at the county clerk’s office. I’d charge you a couple of hundred dollars to basically do the same thing.”

12

Gfactor, the Model Rules aren’t adopted by many states, including, of course, the state in which stoid resides. :frowning:

Which, as I recall it now, lead to a very annoying Legal Ethics class in law school, having to learn everything two different ways. :mad:

13

http://www.abanet.org/cpr/mrpc/model_rules.html

*Id. *

*Id. *

14

The lawyer must act in the best interests of his or her client.

The viability and cost effectiveness of various options depend entirely on the circumstances.

Less expensive and less drastic options may or may not be in the best interests of the client.

Less expensive and less drastic is preferable provided that it works, but if it does not work, then it is a waste of resources.

The question then becomes, how far down the negotiation route (carrot) should a lawyer and client go before pressing hard in litigation (stick).

15

A “simple will”? What is this “simple will” of which thou speakest? Why does a simple will drafted by a lawyer usually take well over a thousand words? How does a person know what options are out there and what is appropriate in the circumstances?

When a person goes to a lawyer/dentist/plumber/barber to have a job done, it is implied that it is because the person wants the job done properly, rather than to do it one’s self with the inherent risk and bother.

16

I agree that “simple will” is in the eye of the beholder, and perhaps that’s not the best example. Nevertheless, some jurisdictions have statutory will forms:

http://www.gogebic.org/willform.htm

Others have statutory medical powers of attorney: http://www.idph.state.il.us/public/books/PwrOf.PDF

Well, you’d ask the lawyer. The question is whether the lawyer is ethically required to tell you if a form like the ones above would meet your needs, or whether he can have his secretary fill in the blanks on his blunderbuss form will and charge you two grand for it, without even mentioning that you could have done it yourself for free.

There’s also an issue about how much the lawyer can charge for completing forms or pursuing pro forma administrative claims for his client. For example, in Michigan we have no-fault automobile insurance. Sometimes there are issues about payment of bills or insurance coverage. OTOH, sometimes there aren’t and the insurance company pays the bills. Before the ethics commission ruled it unethical, some lawyers would act as bill processing centers. They’d take the case against the other driver, and as part of that, they’d submit the bills to the client’s own insurer for payment . . . and then charge the client their standard 33% of the bill when the insurance company paid it. No really.

17

I am not aware of any ethical obligaton imposed in my jurisdiction (Ontario) that would require a lawyer to tell a potential client that the potential client may not require the services of the lawyer to perform a task that is typically performed by that lawyer.

Nor am I aware of any ethical obligation imposed on Dentists to advise potential patients to pull their own teeth, or plumbers to advise potential clients to connect their own pipes, or barbers to advise potential customers to cut their own hair.

As far as a lawyer advising whether a particular self-help form would meet a particular person’s needs, the lawyer would have to discuss with that person the person’s circumstances and needs, review the particular form, advise that person as to the strengths and weaknesses of the options available, and then document the advice given to that person. All of which is billable time.

When a person comes to me asking advice on a will kit, I simply tell that person that I will not advise him or her, for I do not want to risk being held liable concerning someone else’s will kit filled out by a person other than myself. Similarly, when a person asks me to draft a will, I do not tell that person that he or she might be able to use a will kit, for that would again put me at risk of liability.

18

Let’s not kid ourselves. While many legal procedures are complicated and require an expert’s advice, some are pretty simple.

I have a friend who was a secretary for a small legal firm. She said that things like routine wills were just written up by a secretary using a premade form and filling in the blanks. The lawyer would then stamp it or whatever without even reading it.

19

Although a will is emphatically not something for which I’d do this, there have been plenty of times when I’ve told clients or potential clients that it would be simpler and cheaper for them to do it themselves.

20

But would the lawyer have first interviewed the testator to determine if the premade form was appropriate in the circumstances? That’s critical to the job of the lawyer. I’d be very concerned if a lawyer charged for preparing a will without actually meeting with the client to determine the client’s needs. I’d also be very concerned if a lawyer did not review the pertinent parts (e.g. where the clerk filed in the blanks) of the will with the testator prior to the testator signing the will. It’s a matter of being as cost efficient as possible (clerks and boilerplate forms) while still meeting ethical professional standards (e.g. interviewing, advising and reviewing).