Who’s The Boss?

Who is the boss: you or your client?

Answer quickly. Your initial, unfiltered response will speak volumes about how you view your job and its income-generating relationships.

If you think you are the boss, you are probably focusing on the fact that you are the one with the law degree. You have knowledge, skills, resources and access that the client lacks. That is, after all, why they are coming to you.

If, on the other hand, you say the client is the boss, it is likely because they are the ones who pay the bills.

The truth – at least according to the rules of ethics – is that both answers are correct.

In some areas, clients have the sole authority to make decisions and direct the action. In other areas, you get to call the shots.

Scope of Representation: A Slippery Slope?

At issue here is the “scope of representation” – which the bright legal minds at Professional Liability Matters say is a murky swamp that lawyers must wade through on a daily basis.

“Generally, attorneys have an ethical duty to abide by the client’s decisions concerning the objectives of representation and the means by which they are to be pursued,” according to a recent blogpost. “As interpreted by the courts, this means that attorneys have implied authority regarding ‘procedural’ matters, but a client retains the right to make ultimate decisions affecting the client’s ‘essential,’ or ‘substantive’ rights.”

The problem is deciding which decisions are “procedural” and which are “substantive.”

A good starting point is Rule of Professional Conduct 1.2, which says you must abide by a client’s decision to:

• Settle a case
• Enter a criminal plea
• Waive a criminal jury trial
• Testify at trial

By contrast, you have implied authority to:

• Accede to reasonable requests of opposing counsel that do not prejudice your client’s rights
• Avoid offensive tactics
• Be punctual in fulfilling your professional obligations
• Treat all persons involved in the legal process with courtesy and consideration

In addition, Rule 1.2 says that during representation, you may exercise independent professional judgment to waive or fail to assert a client’s right or position. An example: you can agree to an extension of time for the opposing party to file pleadings or discovery without obtaining the client’s consent.

“But these general guidelines leave many strategic questions unanswered,” says Professional Liability Matters. “[W]ho has the final call regarding witnesses, dispositive motions, defense themes, or trial strategy?  For those decisions that are not expressly allocated to the client, the rules provide that the attorney should consult with the client to establish the objectives of the engagement and inform the client of all significant developments in the case.”

Communication Cures Most Ills

When in doubt about the scope of your authority, communicate. This is not just good risk management – it is also required under Rule 1.4:

“In some situations - depending on both the importance of the action under consideration and the feasibility of consulting with the client - this duty will require consultation prior to taking action. In other circumstances, such as during a trial when an immediate decision must be made, the exigency of the situation may require the lawyer to act without prior consultation. In such cases the lawyer must nonetheless act reasonably to inform the client of actions the lawyer has taken on the client’s behalf.”

Communication should be ongoing as the case proceeds. And it should be documented – to head off any accusation that you acted without your client’s permission.

Another tip: apply the golden rule. Treat your client how you like to be treated. That way, you will be partners in a happy endeavor – and neither will have to worry about bossing the other around.

Jay Reeves a/k/a The Risk Man is an attorney licensed in North Carolina and South Carolina. Formerly he was Legal Editor at Lawyers Weekly and Risk Manager at Lawyers Mutual. Contact jay@lawyersmutualnc.com, phone 919-619-2441.

For more information: Professional Liability Matters http://professionalliabilitymatters.com/2013/10/31/whos-the-boss-attorney-or-client/