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Published online by Cambridge University Press: 20 November 2018
1 Brown and Dauer are the authors of Planning by Lawyers: Materials on a Nonadversarial Legal Process (Mineola, N.Y.: Foundation Press, 1978); Preventive Law—a Synopsis of Practice and Theory, in American Bar Association, Section of Economics of Law Practice, The Lawyer's Handbook (looseleaf; Ann Arbor, Mich.: Institute of Continuing Legal Education, 1975); are contributing coeditors of the forthcoming Preventive Law Reporter (Butterworth's 1982); and are collaborating on other projects in the area of preventive law and legal counseling.Google Scholar
2 See Brown, Louis M. &Brown, Harold A., What Counsels the Counselor? The Code of Professional Responsibility's Ethical Considerations—a Preventive Law Analysis, 10 Val. U.L. Rev. 453 (1976).Google Scholar
3 There may be another reason for the rule: if the scope of the representation is narrowed by a rule of law or practice, so is the potential for malpractice liability. On the general relationship between ethical rules and liability standards, see Rhode, Deborah L., Why the ABA Bothers: A Functional Perspective on Professional Codes, 59 Tex. L. Rev. 689, 709–14 (1981).Google Scholar
4 There are subtle gradations within this to be sure. The corporation with an antitrust problem is different (usually, but not always) from the pensioner-turned-entrepreneur opening his or her first candy shop. That observation is important and correct, but it does not undo the point being argued. For one thing even corporate officers are people with more or less certainty and knowledge about the course they have charted. More to the point is the fact that professional responsibility must always be situational—we do not suggest that a lawyer always be required to do the client a favor the client doesn't ask for, but only that he or she be encouraged (when it seems to the lawyer appropriate) to try.Google Scholar
5 The Client Counseling Competition was started in 1969 and is now an international competition among law schools in the U.S. and Canada. Approximately three-quarters of U.S. law schools participate. In the competition, two law students as lawyers in the same law office counsel a client. The same client is counseled successively by teams of law students from different schools. The person playing the role of the client is supplied in advance with a confidential profile. The judges in these successive consultations are lawyers and a nonlawyer counselor (psychiatrist, psychologist, minister, or social worker) who are present during each of the consultations. A committee determines the annual theme, prepares the consultation situations for the competitions, and serves to assist the American Bar Association, Law Student Division, in the administration of the competition. The competition is one of the few places where lawyer-client consultations are preserved and made available for study and analysis. The consultations are potentially as valuable, through subsequent analyses, for an understanding of lawyering, as appellate opinions in the law reports are for an understanding of judging. For additional information, copies of past consultation situations, video tapes of consultations, and other information write to Anne C. Campbell, Director, Law Student Division, American Bar Association, 1155 East 60th Street, Chicago, Illinois 60637.Google Scholar
6 Some would suggest that family counseling is a skill many lawyers do not possess. Perhaps the answer in those instances is for the lawyer to make an appropriate referral. What is not acceptable, in our view, is for the lawyer to ignore all of those solutions to the problem other than the strictly legal ones—i.e., to accept uncritically the client's guess that the problem is indeed “legal.”.Google Scholar
7 For two rather opposite views on this point, see Fried, Charles, The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation, 85 Yale L.J. 1060 (1976) and Dauer, Edward A. &Leff, Arthur Allen, The Lawyer as Friend, 86 Yale L.J. 573, esp. at 582 (1977).Google Scholar
8 One, which we do not discuss, is the question of who the client is when the lawyer deals with only one agent of the corporation. The Model Rules do address this in Rule 1.13. For representative opinions on the issue see, inter alia, Upjohn Co. v. United Sates, 449 U.S. 383 (1981); Note, Application of the Attorney-Client Privilege to Corporations: New Directions and a Proposed Solution, 20 B.C.L. Rev. 953 (1979); Note, The Attorney-Client Privilege—Identifying the Corporate Client, 48 Fordham L. Rev. 1281 (1980). These issues deserve special attention in the context of legal audits, another instance of the lawyer as “evaluator.” See Brown, Louis M., Legal Audit, 38 So. Cal. L. Rev. 431 (1965).Google Scholar
9 See Brown & Dauer, Planning by Lawyers, supra note 1. And cf. Jones, Harry W., Lawyers and Justice: The Uneasy Ethics of Partisanship, 23 Vill. L. Rev. 957 (1978); Note, Preventing the Use of Unenforceable Provisions in Residential Leases, 64 Cornell L. Rev. 522 (1979).Google Scholar
10 The failure is best illustrated by the permissive withdrawal rule of Rule 1.2(e), a too easy answer to the interesting questions. The gracefulness is in the comment to Rule 2.1 and in the introductory definition of “fraud.”.Google Scholar
11 Graded, again, by the sophistication (and sometimes the personality) of the client—and of the lawyer. See generally note 4 infra.Google Scholar
12 The work of Robert Redmount is particularly illustrative in this regard. See, e.g., Robert Redmount, Client Counseling and the Regulation of Professional Conduct, in a forthcoming issue of the St. Louis University Law Review (1982).Google Scholar
13 See Brown, Harold A. &Brown, Louis M., Disqualification of the Testifying Advocate—a Firm Rule, 57 N.C.L. Rev. 597, 620 n. 97 (1979).Google Scholar
14 Though the bar does too. We would, for example, urge the ABA to prepare a sample or model set of explanations of lawyers' rules and principles for actual and potential clients. Some of these rules, like those that limit the strictures of confidentiality, surprise our clients. The grounds for the lawyer's declining or withdrawing from a representation should be stated from the client's perspective. Likewise for the client's right to discharge the lawyer (and its effect on the fee); the lawyer's duties of promptness and communication; and, by no means least, the nonadversarial functions of intermediary and evaluator that the Model Rules propound.Google Scholar
15 See, e.g., Kutak, Robert J., Model Rules of Professional Conduct: Ethical Standards for the 80s and Beyond, 67 A.B.A.J. 1116 (1981).Google Scholar
16 Cf. Brown, Louis M., The Role of the Law Office in the Administration of Justice, 67 A.B.A.J. 1127 (1981).Google Scholar