Boalt: Legal Profession
Fourth Class – Abide, Consult, Communicate
January 28, 2014
This box will tell you what you need to prepare for class.
FAQ’s / All Students ReadOutline / Section IV(F)(1)-(2); pp. 27-28 / All Students Read
Rules / MR 1.2, 1.4 / All Students Read
3.1 / Tram Nguyen’s Case / All Read; Students with Last Names Beginning R-Z Are Ready to Discuss
3.2 / Undue Influence / All Read; Students L-P Are Ready to Discuss
3.3 / Defending the Unabomber / All Read; H-K ready to discuss
3.4 / Settlement Talks / All Read: D-G ready to discuss
3.5 / Death Row Volunteer / All Read: A-C ready to discuss
3.6 / Lawyers representing mass killers / All Read; no one on call
3.7 / Overview of Paternalism / Optional
PDF of scenarios involving trauma / On website for this week / All read; no cold calls
Abide, Consult & Communicate
Frequently Asked Questions
Rules: MR 1.2(a), 1.4, 1.14, 2.1
(3.1) What rules govern the power over decision-making between attorney and client?
This week we will explore the sharing of power and authority in the attorney-client relationship. We can divide this topic into the rules, the black-letter law, the practice of power sharing, and normative analysis of these issues (e.g., client autonomy, attorney paternalism, etc.)
First, the key rules: MR 1.2, 1.4, and 1.14. MR 1.2 provides that “a lawyer shall abide by a client's decisions concerning the objectives of representation andshall consult with the client as to the means by which they are to be pursued.” This duty to “abide & consult” is sometimes reduced to potentially misleading shorthand: the client controls the objectives and the attorney controls the tactics. It may be misleading because, under the rules, the attorney doesn’t simply control tactics but rather must consult regarding the means.
MR 1.4 requires the lawyer to communicate with the client as to significant developments. The rule is also invoked regarding the single-most common complaint against lawyers: “She doesn’t return my phone calls.” Obviously, you don’t know the client’s objectives until you’ve communicated well with the client.
MR 1.14 governs the representation of clients with diminished capacity. Under that rule, a client’s capacity isn’t “all or nothing,” but rather can vary according to the situation. The lawyermust treat such clients as normally as possible. Ultimately, the rule is somewhat vague and open-ended because of the wide variety of situations in which is must be applied.
Second, much of the black-letter law concerning the allocation of decision-making and authority within the ACR deals with who is permitted to make certain kinds of decisions. For example,MR 1.2 provides that attorneys must abide with the client’s decision regarding settlement, and that criminal attorneys must abide by the client’s decision regarding pleas, jury-trial waivers, and the decision to testify. (The ABA’s Standards for Criminal Justice also give the client control over “whether to appeal.” Std. 4-5.2(a)(v).) These sorts of action-specific rules, often dealing with settlement issues, derive from the common law of principal and agent. We won’t have time to explore that case law in any depth.
Third, the normative issues focus on the topics of autonomy and paternalism. Some commentators believe it is the attorney’s job to facilitate the client’s autonomous pursuit of its interests, while other commentators emphasize the need for attorneys to engage in “moral activism” in the course of representing clients so as to achieve results that are more just.[1]
What do the rules say? MR 2.1 permits, but does not require, attorneys to resort to moral suasion when advising clients.
(3.2): What is the duty of communication?
Please read MR 1.4. Lawyers are expected to give their clients the information the clients need to make decisions and to respond to questions about the status of the matter. The single most common complaint filed with state bars is “my lawyer won’t return my calls.”
In my continuing legal education speeches to practicing lawyers, I often refer to the duty of communication as “the mother of all our fiduciary duties.” Leaving aside the world of legal doctrine and theory (where the duties of confidentiality and loyalty are treated as the most important duties), in the working world when a lawyer is communicating well the other duties tend to fall neatly into place. Conversely, a lawyer who communicates poorly with clients is headed toward disaster even if he produces technically terrific work product.
3.1Tram Nguyen’sCase (former examquestion)
During your first year as a lawyer, you were introduced to Tram Nguyen, who was charged with leaving the scene of a minor traffic accident without identifying herself. Ms. Nguyen’s sister-in-law has offered to pay the expected legal fees.
You met with Ms. Nguyen, who said that she had stopped to identify herself—it was the other driver who had both caused the accident by hitting her car in the rear and who had left the scene without stopping. The other driver, Ms. Swanson, and her passenger, who works as Swanson’s assistant, then called the police and reported Ms. Nguyen as leaving the scene. The policeman who visited Ms. Nguyen to discuss the matter had been rude and condescending. He claims that Ms. Nguyen made inconsistent statements about the accident.
Ms. Nguyen, a Vietnamese-American who has been in this country about fifteen years, speaks with a heavy accent and uses unorthodox grammar. She was tight-lipped and nervous but, as the interview went on, she opened up. You had no doubts about her sincerity or her grasp of the facts. Ms. Nguyen, a homeowner and a churchgoer, is a respected member of her community who works as a green grocer and who volunteers with her church. She had never been in trouble before. As upset as she was, she slowly revealed herself to be a charming person. You sense that she values her dignity and her reputation. She believes that the police and prosecutor have sided with Ms. Swanson because of communication problems and racism.
Your firm’s investigator photographed both cars. The dents and the paint chips corroborated Ms. Nguyen’s account of how the cars collided. “Fight all the way,” he said, tossing the photos on your desk. “No one ‘flees the scene’ when they’ve been rear-ended.”
The photos were encouraging, and the misdemeanor procedure offered two bites of the apple:a one hour bench trial and, if unsuccessful, a jury trial de novo.
Because of your inexperience, you discussed the case with a criminal defense partner at your firm who immediately dismissed, with a roll of her eyes, your plan to expose the police’s racism through devastating cross-examination. She said, “You have no facts to support the allegation. If an acquittal requires an implicit finding of racism, you won’t get your acquittal.” Then, as you listened, the partner called the prosecutor, listed the strengths of Ms. Nguyen’s case, and described the photos — without mentioning racism.
The prosecutor said, “Judge Cook will believe the police and the two witnesses. He’ll want Nguyen to plead. If she does what Cook wants, he’ll go very easy on her. If not, he’ll be mad at her. He’s swamped on this docket, and he has little patience to begin with. Here’s the deal. She pleads nolo contendere to the misdemeanor and gets four months’ probation, no community service, and a fine of $100. Her criminal record can be sealed in one year if she behaves well. Lose the bench trial, and it’ll probably be four days in the jail, 100 hours of community service, and a $1,000 fine—plus the record could never be sealed. If she loses in the jury trial, it’s probably going to be ten days in jail, 250 hours service, a $2,000 fine, and no sealing of the record.” When the call was over, the partner said to you, “Do Ms. Nguyen a big favor—get her to do what Judge Cook wants. Don’t try to be a hero.”
You met again with Ms. Nguyen the day before the bench trial. She was again rather nervous. You began to discuss various options. Ms. Nguyen said, “You are the expert. Tell me what to do.” At that point, Ms. Nguyen and you were joined by her sister-in-law, Theresa Nguyen, who articulated a strong belief that the police were racist in believing Ms. Swanson, and who stated that any sort of plea bargain would not be justice. “You are Tram’s protector,” Theresa said. You asked Ms. Nguyen what she thought about those comments, and she said, “I trust Theresa very much. What should I do?”
3.2: Undue Influence
ByWilliamSoskin
Most of the time I really like being an estate planner. I translate clients’ vague goals into precise directions. I even save them taxes in the process. I am a wordsmith, draftsperson, technician. But occasionally my role gets more problematic, and I struggle with the question of when it is appropriate to refuse to do a client’s bidding.
Of course, I didn’t realize I would have to deal with these issues when I got a phone message recently from Louise Laughlin (all names have been changed), who wanted an immediate appointment to revise her will. In fact, I had only a vague recollection of preparing her will several years before under trying circumstances. When I returned the call, a man answered, identifying himself as her grandson. He said his grandmother wanted to come in immediately to change her will and leave her house to him.
I asked to speak to Louise. I kept our conversation short. "Louise, I can see you nextMonday at 4 P.M. I would rather have just the two of us meet. Is that OK?" Louise agreed.
Louise arrived 20 minutes before our appointment. By that time I had reviewed her file. Louise was 78 when I first met her four years ago, three months after her husband had died.She had a married daughter, two grandchildren, and a great-grandchild. The 33-year-oldgrandson lived with Louise. The granddaughter was a hardworking single mother living in Houston. Although Louise loved her daughter, she felt her son-in-law was extremely greedy and feared his influence over her daughter. Louise’s assets consisted of $60,000 in savings and a modest home worth about $325,000. Though her estate was far less than what most of my clients had, her problems were far worse. At her request, I prepared a simple will dividing her estate so that each grandchild and the daughter would receive an equal share. Louise had called back shortly after our meeting to tell me that her grandson wanted the house to be placed in his and his sister’s names. I quickly convinced Louise that this was a bad idea. With these details fresh in my mind, I wondered what new developments had made her decide to make changes in the will. This meeting would tell, I thought.
When I entered the waiting room, Louise was sitting ramrod straight on the edge of the couch. She was wearing an out-of-style white winter coat. Her face was freckled, and she was overweight. Her hair was teased into neat little white curls.
"How are you?" I asked
"I’m kinda nervous right now," she answered.
"What’s going on, Louise?" I asked.
"It’s my son-in-law. He’s—excuse me for saying so—a real bastard. I’m afraid that if he gets his hands on my property, he’ll destroy it," she blurted out.
"How will he destroy it?" I asked.
She didn’t hesitate. "He’ll take all the property for himself, and no one else will share in it. He has scared my daughter, and I think she’ll do whatever he wants. I need the house in my grandson’s name to protect us. That way, my son-in-law can’t get the property when I die."
"I don’t think it will work that easily," I said calmly and slowly. "Louise, the only assets you have in the world are your home and $60,000. What if you get sick? You are 82 and in good health, but that can change. If you put the property in the name of your grandson, you won’t be able to borrow against it, and if he sells the property, you won’t get all the money. You need to keep the property in your name in case of a rainy day. And besides, you told me you love your granddaughter and you love your daughter. Isn’t that true?"
"Yes."
"Well, then, if you put the property only in the name of your grandson, you’ve essentially cut out the other two people you love. That isn’t right, is it?"
Louise nodded in agreement, but I could see she wasn’t fully convinced. She looked down and clenched her hands.
"Louise, look at me," I said. She raised her eyes. "I can’t get rid of your nervousness. No matter what I do, you’re going to be nervous. If we put the title to your house in the name of your grandson, your son-in-law can still file a lawsuit. He can still say your grandson was trying to unduly influence you. There’s nothing I can do to make the fear go away." I thought Louise was going to cry. "Louise, let me do the best I can to protect all of you. But, please, keep your house while you are alive. When you go, you will still be sharing your assets with the three people you really love. I think that’s the best we can do.
Louise sat for a moment and then said, "Well, if we leave the will the way it is, will you call my grandson, Richard, and explain to him what we’re doing?"
"Of course I will," I said. "But tell me more about him. What’s he like?"
"He has lived with me for the past two and a half years, you know. But he has a bad back. He was working in a liquor store, and he hurt his back four years ago. He’s on disability. He plays games on the computer all day. Some days he can cut the lawn, but some days his back just really hurts. I think his drinking helps take the pain away."
"I’m so sorry about all of his pain," I said. "I’ll be glad to talk to him. Look, we’re doing the best we can, and you are right to leave things as they are."
I got up and helped her out of her chair. I put my arm on her shoulder. She had been wearing her coat throughout our meeting. We walked slowly out of my office. This isn’t over, I thought to myself.
I was right. Twenty minutes after she left, Louise called. "What if I put the house inRichard’s name and my name now?"
"I don’t think that’s a good idea," I responded, and explained–again–the problems that could ensue.
"Why don’t you talk to my grandson?" she asked, and passed the phone to Richard. Before Richard could say a word, I told him that Louise and I had had a good meeting and that Louise wanted the three people she loved to share equally in her estate. And she wanted to keep her house in her name. Richard was not fazed.
"What if someone changes her mind?" he asked.
"What do you mean?"
"I mean," he said sharply, "what if my grandmother changes her mind? Can she changethe will?"
"Of course," I answered.
"Well," he said, "she’s changed her mind. Why don’t you talk to her?"
Louise got on the phone. "I want to leave the house to Richard now. The others have houses. He doesn’t have a house. He needs the house. He’s sick. I’ll give them the cash when I die. I want you to change my will and make him the owner of my house now."
"Why don’t you think this over for a few weeks? We can talk about it again."
"No."
"I hear what you’re saying," I said. "I’ll get back to you." I hung up.
On one level, what she said made sense. But Louise had previously insisted on treating all three equally, and I didn’t trust Richard as far as I could throw him. Did I have an ethical right to simply bail on Louise because I didn’t like what she asked me to do? In my heart, thatjust didn’t feel right. Should I call the "ethics hotline" and ask them for their opinion? I decided to sit on it for a few hours and then make a decision.
It was only an hour later that Richard left a message with my office saying he would give me until tomorrow morning to call him about "the situation." His message also said that the situation had been discussed among family members for at least six months, and that it was news only to me.
Two hours after Louise left, I made up my mind. I dictated a letter to Louise telling her Iwas extremely uncomfortable making the changes. I explained that if I resigned as herattorney, I knew she could easily find another lawyer to draft the documents. In the end, I said, I just couldn’t prepare documents for her when I didn’t believe that it was what she, personally, wanted. I told her I was convinced that I would simply be carrying out Richard’s wishes and not hers.
I gave Louise another alternative. I would prepare a new will leaving her house to Richard with the remaining savings accounts divided equally between her daughter and granddaughter if either her daughter or granddaughter called me to confirm that this is what the family wanted. Or Louise could decide to leave the will as it stood. If neither of those choices was acceptable, then she should find a new attorney who would be more comfortable carrying out her wishes.