Model Lawyer and Client Relationships in Practice

A. The Complexity of Practice Settings

The model of lawyer and client relationship in operation may be affected by factors in the practice environment. These factors include the type of firm they belong to and the practice area in which they operate.

²⁵ A Boon, ‘Assessing Competence to Conduct Civil Litigation: Key Tasks and Skills’ in P Hassett and M Fitzgerald (eds), Skillsfor Legal Functions II: Representation and Advice (London, Institute of Advanced Legal Studies, 1992).

²⁶ A Giddens, Modernity and Self-Identity: Self and Society in the Late Modern Age (Cambridge, Polity Press, 1991).

outcome of representation. This may, in part, be due to the fact that different types of clients are found in these distinct spheres of operation.

i. ‘One-shotters’ and ‘Repeat Players’

As regards clients, representing a child, a confused elderly person or a mental patient, for example, may encourage a more paternalistic approach than representing an adult able to exercise full choice. It is in these kinds of circumstances where the obligation to protect a client’s best interests comes to the fore. Lawyers must do their best to deter­mine what the client wants and to achieve what is consistent with their interests. In practice, however, other situations tend to fall at the paternalistic end of the spectrum of possibilities for the lawyer and client relationship. Clients with inexperience of legal matters may also encounter paternalistic lawyer and client relationships.

Clients who only consult lawyers in crisis moments in their lives, such as personal injury or divorce, have been labelled ‘one-shotters’.

Heinz and Laumann identified different patterns of lawyer behaviour in ‘two hemi­spheres’ of legal practice.^[1411] In one hemisphere lawyers serve organisational clients, such as corporations and institutions such as trade unions. In the other lawyers provide personal services to individuals and small businesses. Repeat players are more likely to appear in the first hemisphere and one-shotters in the second. This accentuates the very different nature of likely lawyer and client interactions. Dealing with either type of client can affect the time a lawyer might spend, for example, explaining matters. The nature of consultation may also vary between types of matter.

ii. Commercial and Corporate Clients

In large firms corporate and commercial work clients are typically repeat players. The client’s representative may have considerable experience of the kind of matters dealt with. They can anticipate what is going to happen, give very detailed instructions and ask to be consulted on specified issues. In some cases commercial clients dominate their lawyers, seeking control of the decision-making process. In some circumstances clients may also demand unethical actions.

In the corporate and commercial sphere, lawyers may be subject to rules of conduct not generated by their profession. Lloyds of London, for example, produce a code regulating the relationship of Lloyds’ Underwriters and their lawyers.^[1412] This code imposes obligations that go beyond the professional codes of lawyers. It provides that lawyers must justify their fees, provide advance notice of bills, standardise their advice and make greater use of Alternative Dispute Resolution.^[1413]

iii.

The situation in large firms corporate is very different work from the work of smaller, local firms. ‘High street lawyers’ are more likely to deal with clients in a situation of personal plight, for example, criminal or matrimonial matters. Such clients are more likely to be ‘one-shotters’. Funding constraints may limit how much time can be spent with such clients. If they are funding matters themselves, the case may proceed in a disjointed fashion. Advice and assistance may be required episodically. Initial contact may be made by email and it may be difficult to obtain detailed instructions initially or as the matter progresses.

iv. Cause Lawyers

In two volumes edited by Sarat and Scheingold, the impact of cause lawyers was demonstrated to be a world-wide phenomenon.^[1414] Numerous case studies showed that some lawyers use litigation, and various other means, to advance social and political causes. So, for example, litigation might be used to establish precedents that might be beneficial to groups, to causes or to civil rights generally. One question that arose from these case studies was the extent to which lawyers were prepared to sacrifice loyalty to clients in order to advance the cause they believed in.

Causes can often be advanced by establishing precedents through the courts. It may be a long wait to find strong cases that will establish a legal principle. Client loyalty could be compromised if, when such a case is found, a defendant tries to ‘buy off’ the claimant with a generous settlement. The cause lawyer might advise acceptance, in the client’s interest, or be tempted to advise rejection, in the interests of the cause. A lawyer who prioritises the cause he or she works to promote acts in breach of a duty to act in a client’s best interests.

B. The Implications of Complexity for the Lawyer and Client Relationship

Examples of legal practice demonstrate that models of the lawyer and client relation­ship in use may reflect a number of factors. Levels of client consultation and client decision-making may depend on the model of legal practice, the needs, experience and abilities of the client in question, the nature of the work involved, the economic circumstances in which it is done and the wishes of the client.

Under a model of client autonomy a client may decide that they want very little to do with a matter. It may be agreed, or be implicit, that consultation will only occur when vital interests are affected, possibly only at the end of a transaction. The client may give their lawyer carte blanche. Ironically, the autonomous client can decide they prefer a remote relationship with their lawyers. In order to create a different situation, one where a particular model of the lawyer and client relationship was preferred, professional rules would need to impose very specific obligations.

VII.