Control of the Lawyer and Client Relationship

A. Implications of the Legal Basis of the Lawyer and Client Relationship

The legal basis of the lawyer and client relationship raises a question about who is in control of the relationship.

B. Theoretical Models

Theoretical models describe different conceptions of the respective responsibilities of professionals and their clients. They may not be found in pure form in practice, but most lawyer and client relationships are based on these models or display some elements of them. The degree of control exercised by each side of the lawyer and client relationship varies according to which theoretical model of the relationship is subscribed to.

¹² For discussion of this model in the American context, see RD Dinerstein, ‘Client-Centered Counselling: Reappraisal and Refinement’ (1990) 32 Arizona Law Review 501.

¹³ GC Hazard Jr and A Dondi, Legal Ethics: A Comparative Study (Stanford, CA, Stanford University Press, 2004) at 176-79.

Each model reflects different assumptions about the client’s capacity to make decisions and moral choices. This might engender, at one end of the spectrum, percep­tions of an almost child-like dependency. At the other end of the spectrum, clients may be treated as acting as independent moral agents. The models may also reflect dif­ferent perceptions of the lawyer’s responsibility for promoting clients’ moral agency. Those dealt with here are paternalism, participation, autonomy and empowerment.

i. Paternalism

It can be argued that ‘the parental’ is an appropriate metaphor for the lawyer and client relationship.^[1399] The parental relationship envisages that the lawyer has superior knowledge, skills and experience of the matter in hand and therefore knows what is best for the client.^[1400] The conventional term for a lawyer and client relationship reflecting these assumptions is ‘paternalistic’.

In a paternalistic relationship with clients lawyers may attend to their needs without the clients themselves having autonomous rights or specific responsibilities. It reflects the assumption that the most efficient way of proceeding with the matter in terms of both time and expense is for the lawyer to handle everything while troubling the client as little as possible. Paternalism can be identified with traditional notions of profes­sionalism, whereby practitioners determine client needs and how to meet them.

This implication of the paternalist model is that, once clients have revealed their aims, lawyers should be left to take all strategic and tactical decisions. The issues involved are far too complicated for clients to understand, hence the need for lawyers. The considerable control that paternalism affords the lawyer over the client’s affairs may provide circumstances for abuse. This is one reason why the spirit of public ser­vice is invoked in legal practice. It encourages lawyers to prioritise client interests over their own.

ii. Participation

The inequality in the lawyer and client relationship is usually attributed to the fact that the lawyer has superior knowledge and information about the client’s situation and options. This is sometimes called a situation of ‘information asymmetry’. In a lawyer and client relationship based on client participation, the imbalance in the relationship is reduced, if not equalised. It is redressed by the lawyer providing infor­mation and guidance on legal and non-legal options, enabling the client to participate in decision-making.

The participatory approach implies a continual dialogue between lawyer and client. In pure form, the progress of work is evaluated in the light of the client’s aims and interests at each stage. New agreements are reached on the steps to be taken.

In the participatory model, clients control decision-making and lawyers are tech­nical advisers and counsellors. In research conducted in the USA Rosenthal found that higher levels of participation by clients in their personal injury claims tended to increase the sums that they recovered in damages.^[1402] This suggests that, in addition to promoting autonomy, participatory professional relationships might have advantages in promoting client interests, certainly when compared to the paternalistic model.

iii. Autonomy

Western society has moved towards promoting autonomy in most professional fields. This is consistent with the contemporary emphasis on individual, personal autonomy as an overarching ethical good. The change can be illustrated by developments in the relationship between doctor and patient. In the medical field, for example, doctors often did not give patients full information about their condition on the ground that anxiety might make it worse.

Patient autonomy has, in the medical field led to increased emphasis on the need for patients’ informed consent to treatment. Many jurisdictions have abandoned the Bolam test,^[1403] which stated that it was a matter for the doctor’s professional judge­ment what a patient is told about their condition. Instead the ‘prudent patient’ test is preferred. Doctors must typically consider what a prudent patient, in the particular circumstances of the patient in question, needs to know about his medical condition in order to decide what treatment to follow.

In England and Wales, courts have edged towards imposing a duty on doctors to warn patients of all factors, including small risks, affecting their choice of treatment. In 1985, in Sidaway v Bethlem^[1404] the House of Lords held that a doctor was not negli­gent in failing to warn a patient of a 1 per cent risk of paraplegia attached to surgery.

Since Sidaway the requirement for obtaining informed consent has become well established. In Chester v Afshar,^[1405] the majority of the House of Lords held that a patient was entitled to succeed when not warned of a 1 to 2 per cent risk of an operation going wrong. The minority dissented on the grounds that the information would have made no difference on the crucial issue of causation. Among the major­ity, Lord Steyn cited Ronald Dworkin in support of an individual’s right to personal autonomy in controlling their medical treatment.^[1406] He quoted a section of text supporting the integrity of the individual and their autonomy in making their own choice. This

allows us to lead our lives rather than be led along them, so that each of us can be, to the extent a scheme of rights can make this possible, what we have made of ourselves. We allow someone to choose death over radical amputation or a blood transfusion, if that is his informed wish, because we acknowledge his right to a life structured by his own values.^[1407]

His Lordship therefore asserted that the autonomy of the patient required that adults should consent, on a fully informed basis, to surgery. The doctor had violated the patient’s right to choose and, if damages were not awarded, the surgeon’s duty to seek consent would seem hollow.

The move away from paternalistic professional relationships is broader and more pervasive than the limited issue of consent to treatment. Professionals are encouraged to see clients, not as passive recipients of advice or assistance, but as consumers pur­chasing a service.

iv. Empowerment

The final model describing the possible relationship between lawyer and client emphasises empowerment. It envisages that clients are encouraged and helped to be autonomous individuals. This could even involve helping them to use legal processes themselves. Clients might therefore handle as much of their matter themselves as they can, without the assistance of lawyers. This is a step beyond autonomous decision­making to autonomous action.

The empowerment model was formerly restricted to some forms of radical lawyer­ing. It was associated with the so-called ‘unbundling’ of legal services into different components, some of which could be handled by lawyers. It has been predicted, by Susskind and others, that these options will move more mainstream with the increas­ing power of computer technology and the sophistication in software and internet solutions. Clients, it is predicted will, in future, be more easily able to purchase ‘Do-it-yourself’ law packages and a la carte law services.

It is arguable that aspects of the empowerment thesis have already been enacted. Initiatives securing direct client access to barristers have made a virtue of self-help. Because barristers are not able to hold client money, clients seeking assistance from barristers under the Bar Direct scheme must take steps such as issuing their own proceedings. Although this may be a stopgap until more traditional arrangements are established, it is also an interesting experiment in empowerment.

C. Decision-making in the Model Relationships

In the models described, the key issue is responsibility for making decisions. It is not suggested that clients are responsible for making every decision in a matter. It is arguable however that they should set the objectives of the representation and make important decisions thereafter.

i. An Illustration

In litigation, it is common for there to be a procedure whereby a party who is sued notifies an intention to defend the claim. They then have a fixed period within which to file a defence. After the fixed period has expired, a claimant can usually enter judg­ment in default of defence. Failure to file may occur as a result of an oversight by the defendants or their lawyers.

To enter judgment in default of defence is to take advantage of technical failure by the defendant and nothing to do with the merit of the claim. Such judgments are often set aside by the court, usually at the defendant’s cost, where a meritorious defence can be shown. The decision whether to enter judgment therefore has an ethical dimen­sion. It used to be the case that solicitors acting for claimants would ask lawyers for a defendant whether they intended filing a defence before entering judgment. Although there was no rule on the matter, many solicitors considered it a ‘professional courtesy’ to warn another solicitor of such action. Where defendants had no lawyers, and were impecunious, a claimant’s lawyer might be more inclined to simply enter judgment.

The practice of deciding how to respond to failure to file a defence without consult­ing the client illustrates the operation of the paternalistic model. Obtaining judgment in such circumstances might be justified on the grounds that it is the client’s explicit objective to win the case. How it is done is within the scope of the lawyers’ operational discretion. Not obtaining judgment could be justified on the grounds that, although it is within the scope of the lawyer’s instructions to win the case, the lawyer is bound to behave honourably and with integrity. To enter judgment could be seen as underhand and therefore dishonourable. The paternalistic model would place responsibility for the decision squarely with the lawyer.

Both actions described had ethical implications on which the client could, and arguably should, have been consulted. Giving the defendant a chance to file a defence without asking the client put the relationship with other solicitors above the client’s. Consequently, the defendant’s interests were also placed above the client’s interests. Entering judgment without asking the client assumed that the client’s only interest in the matter was succeeding in the claim. It ignored the client’s right to decide an issue of principle. There may also have been commercial issues involved. Entering judgment in default may have business implications, for example, by undermining the client’s reputation with other contractors.

Under the participatory model, the client would be consulted about the course of action to be taken where a defence is not filed in time. Any reputational issues arising from entering default judgment could be considered. There may even be a discussion of the morality of taking a judgment on a technicality, particularly if it was clear that there was an arguable defence. In such circumstances, the client may be dissuaded from deciding to enter judgment, at least until due warning is given. If lawyer and client disagree on a course of action following discussion, the participatory model does not provide a resolution. Whether or not the lawyer was prepared to enter judgment having advised against it would be a true measure of who controls the relationship.

The model of client autonomy suggests that the decision to enter judgment in default is unambiguously the client’s to make. The lawyer might advise that such a step would invite terrible publicity. She may table numerous other pragmatic argu­ments showing how entering judgment would be against the client’s best interests. She is, however, bound to follow the client’s instructions, even if they are unwise. Even if she disagrees with the client’s instructions, the lawyer operating under this model should carry them out.

The empowerment model provides a consumer with exactly the legal service that they want. This may or may not involve moral counselling or advice about the propriety of a course of action. It might be anticipated that clients want to know what the law allows. They do not necessarily want advice about moral choices. If the client does want such advice it might come at an additional cost. Having obtained any necessary paperwork, and advice on how to complete it, the client can attend court and enter judgment on their own behalf.

ii. Expected Trends

It is arguable that the trend in legal practice has moved away from paternalism, towards participatory lawyer client relationships, and, in some areas, beyond, into the model of client autonomy. This shift is consistent with increased emphasis on individual rights and on clients’ rights as consumers. The implication is that lawyers should allow clients to reach their own decisions, exercising free will. The process is more likely to involve participatory decision-making on material and morally sensitive issues. The rest of legal representation, the nuts and bolts of how a matter is handled, arguably falls within the area of the lawyers’ operational discretion.

Participatory decision-making involves lawyers providing sufficient information to allow clients to make informed decisions regarding their own interests. The supportive atmosphere of participatory relationships is intended to facilitate wise decisions by clients. Clients are assisted in exploring the legal, pragmatic and moral implications of particular courses of action. If a client intends to take a decision their lawyer considers immoral, the lawyer has a chance to dissuade them using moral and prag­matic arguments, such as the impact of negative publicity. In some cases, they may be unable to continue to act, for example, where the client’s decision would involve the lawyer in a breach of conduct rules. Sometimes, morality and pragmatism overlap, for example, where there is a risk that a client’s lie will be revealed in court.²⁵

The difficult issue for the participatory model arises where clients, despite counsel­ling, require action that their lawyer considers immoral. Lawyers might argue that they should not be passive in the relationship, that promoting client autonomy is not simply a question of doing what clients say. Within the participatory model, there may be scope for a lawyer to refuse to take action he has counselled against. Even this is not clear, however. It may arise where action is required that was not contemplated when the original instructions were accepted. Within the model of client autonomy the lawyer must refuse to take illegal actions on a client’s behalf. There is, however, no right, or responsibility, to ensure that clients make ethically defensible decisions.

In the current cultural climate, participatory decision-making is compatible with contemporary social norms. It responds to clients as autonomous consumers, but also recognises the moral agency of lawyers. The opportunity to express and discuss moral choices, and possibly dissuade clients from immoral ones, offers lawyers a more satisfactory role than that of ‘hired gun’. Since moral responsibility is notionally shared, lawyers arguably have a right to decline to take courses of action that, while legal, they consider immoral and beyond the scope of the original instructions. This may prevent the fragmentation of personality, or ‘false self’, sometimes associated with professional roles.²⁶

VI.