Return of the Counsellor at Law Written Materials

Transcription

1 A Place at the Table: Symposium on Attracting 21st Century Clients & Efficiently Solving Their Problems Monday, September 25, 2017 Troutman Sanders LLP Richmond, VA Return of the Counsellor at Law Written Materials

2 9/20/2017 RETURN OF THE COUNSELLOR AT LAW THE PROCESS OF E THIC A L LEGAL COUNSELING TODAY Jack W. Burtch, Jr. Burtch Law PLLC jb@burtchlaw.com WHAT IS A COUNSELLOR AT LAW? My license says: Attorney and Counsellor at Law We are licensed counselors. A problem-solver. Legal problem-solver. We can t just use half of our license. We are attorneys and counselors. 1

3 9/20/2017 RULES OF PROFESSIONAL CONDUCT The Rules of Professional Conduct recognize that we represent clients and are public citizen[s] having special responsibility for the quality of justice. (Preamble to the Rules) The Preamble sets out noble aspirations about what a lawyer is to be. We have a role as public citizen, legal educators, defenders of the defenseless and guardians of our profession. We are guided by our conscience and uphold the ideals of public service. The Preamble states: RULES OF PROFESSIONAL CONDUCT As a public citizen, a lawyer should seek improvement of the law, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. A lawyer should strive to attain the highest level of skill, to improve the law and the legal profession, and to exemplify the legal profession's ideals of public service. 2

4 9/20/2017 WHAT DO WE MEAN BY THE RETURN OF THE COUNSELLOR AT LAW? What do we mean by the return of the Counsellor at Law? Lawyer as hired gun. Lawyer as fixer. Lawyer as doer of deals. Lawyer as courtroom advocate. Lawyer as legal researcher. Lawyer as scrivener. Lawyer as consigliore. THE LAWYER HAS A BIGGER ROLE Professor Robert W. Gordon of Yale Law School notes, lawyers work on behalf of clients positively requires both for its justification and its successful functioning for the benefit of those same clients in the long run that lawyers also help maintain and refresh the public sphere, the infrastructure of law and cultural convention that constitutes the cement of society. Why Lawyers Can t Just be Hired Guns, in Ethics in Practice (Deborah Rhode, ed., Oxford University Press, 2000). 3

5 9/20/2017 FUNDAMENTAL PRINCIPLES OF LEGAL COUNSELING 1. Clients are primary decisions-makers. 2. The problem is theirs, not yours. 3. To adequately advise a client about their problem we need to know their : Personal values Priorities Risk-aversion How they value consequences of different types Subjective factors are best weighed by those affected by them. FUNDAMENTAL PRINCIPLES OF LEGAL COUNSELING 4. The lawyer can help identify likely ramifications, but the client determines relative importance. 5. Lawyers want to minimize risk, risk of malpractice. Sometimes makes our priorities different from the client s. Are we urging a course of action to benefit the client or to benefit us? 4

6 9/20/2017 LAWYER S ROLE IN THE COUNSELING AND ADVISING PROCESS The lawyer: Elicits information from clients; Explores alternatives and consequences; Makes clients aware of reasonable alternatives; 1. Ascertain the Client s objectives. 2. Identify possible solutions. Provide information to clients. LAWYER S ROLE IN THE COUNSELING AND ADVISING PROCESS Suggest potential solutions. 3. Identify potential consequences. 4. Ascertain basis for client predictions. 5. Ask about questions and concerns. 6. Gives advice. 5

7 9/20/2017 THE LAWYER AS ADVISOR Rule 2.1 Advisor In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation. THE LAWYER AS ADVISOR RULE 2.1(CONT.) Comment Scope of Advice [1] A client is entitled to straightforward advice expressing the lawyer's honest assessment. Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront. In presenting advice, a lawyer endeavors to sustain the client's morale and may put advice in as acceptable a form as honesty permits. However, a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client. 6

8 9/20/2017 THE LAWYER AS ADVISOR RULE 2.1(CONT.) [2] Advice couched in narrowly legal terms may be of little value to a client, especially where practical considerations, such as cost or effects on other people, are predominant. Purely technical legal advice, therefore, can sometimes be inadequate. It could also ignore, to the client's disadvantage, the relational or emotional factors driving a dispute. In such a case, advice may include the advantages, disadvantages and availability of other dispute resolution processes that might be appropriate under the circumstances. [2a] It is proper for a lawyer to refer to relevant moral and ethical considerations in giving advice. Although a lawyer is not a moral advisor as such, moral and ethical considerations impinge upon most legal questions and may decisively influence how the law will be applied. THE LAWYER AS ADVISOR RULE 2.1(CONT.) [3] A client may expressly or impliedly ask the lawyer for purely technical advice. When such a request is made by a client experienced in legal matters, the lawyer may accept it at face value. When such a request is made by a client inexperienced in legal matters, however, the lawyer's responsibility as advisor may include indicating that more may be involved than strictly legal considerations. [4] Matters that go beyond strictly legal questions may also be in the domain of another profession. Family matters can involve problems within the professional competence of psychiatry, clinical psychology or social work; business matters can involve problems within the competence of the accounting profession or of financial specialists. Where consultation with a professional in another field is itself something a competent lawyer would recommend, the lawyer should make such a recommendation. At the same time, a lawyer's advice at its best often consists of recommending a course of action in the face of conflicting recommendations of experts. 7

9 9/20/2017 THE LAWYER AS ADVISOR RULE 2.1(CONT.) Offering Advice [5] In general, a lawyer is not expected to give advice until asked by the client. However, when a lawyer knows that a client proposes a course of action that is likely to result in substantial adverse legal, moral or ethical consequences to the client or to others, duty to the client under Rule 1.4 may require that the lawyer act if the client's course of action is related to the representation. A lawyer ordinarily has no duty to initiate investigation of a client's affairs or to give advice that the client has indicated is unwanted, but a lawyer may initiate advice to a client when doing so appears to be in the client's interest. SOME THINK WE SHOULD NOT OFFER ADVICE! There is a radically client-centered view that says lawyers should not give advice. This has been rejected by lawyers but still has some advocates in the academy. For example, Legal Interviewing and Counseling: A Client-Centered Approach by David A.Binder and Susan C. Price (West, 1977) took the position that client-empowerment required that lawyers not give legal advice but simply give clients options which they could choose. This view was roundly criticized by the practicing bar and the authors backed off somewhat in later iterations of their text. But the view persists among some lawyers that client autonomy requires the lawyer to actually give advice only after every other option has failed. 8

10 9/20/2017 THE LAWYER S ROLE IS LIMITED The lawyer s role may be limited by the scope of the lawyer s representation agreement. Rule 1.2 of the Rules of Professional Conduct provides: Scope of Representation (a) A lawyer shall abide by a client's decisions concerning the objectives of representation, subject to paragraphs (b), (c), and (d), and shall consult with the client as to the means by which they are to be pursued. A lawyer shall abide by a client's decision, after consultation with the lawyer, whether to accept an offer of settlement of a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify. THE LAWYER S ROLE IS LIMITED (b) A lawyer may limit the objectives of the representation if the client consents after consultation. (c) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning, or application of the law. (d) A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. (e) When a lawyer knows that a client expects assistance not permitted by the Rules of Professional Conduct or other law, the lawyer shall consult with the client regarding the relevant limitations on the lawyer's conduct. 9

11 9/20/2017 THE LAWYER S ROLE IS LIMITED The comment to the Rule makes it clear that the lawyer has a duty to consult with the client about the means to be used in pursing the client s objectives and advising the client about the advisability of dispute resolution processes. Notably, the comment says that the rules do not define the lawyer s scope of authority in litigation. THE LAWYER S ROLE IS LIMITED Both lawyer and client have authority and responsibility in the objectives and means of representation. The client has ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by the law and the lawyer's professional obligations. Within those limits, a client also has a right to consult with the lawyer about the means to be used in pursuing those objectives. In that context, a lawyer shall advise the client about the advantages, disadvantages, and availability of dispute resolution processes that might be appropriate in pursuing these objectives. At the same time, a lawyer is not required to pursue objectives or employ means simply because a client may wish that the lawyer do so. A clear distinction between objectives and means sometimes cannot be drawn, and in many cases the client- lawyer relationship partakes of a joint undertaking. In questions of means, the lawyer should assume responsibility for technical and legal tactical issues, but should defer to the client regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected. These Rules do not define the lawyer's scope of authority in litigation. Comment [1] to Rule

12 9/20/2017 THE COUNSELING PROCESS 1. Make a counseling plan. Make plan to be sure important points get covered. Provide preparatory explanations: Identifies the decisions which need to be made/review the consequences. THE COUNSELING PROCESS 2. Clarify Client Objectives. Options often are not apparent until after objectives are articulated. Client objectives may (probably will) change as the case progresses. Decisions often involve subsidiary issues to which previously-identified objectives do not apply Client wants neighbor s dog to stop barking, but does not want to alienate neighbor. 11

13 9/20/2017 THE COUNSELING PROCESS 3. Identify alternatives. Usually, the lawyer should begin by identifying alternatives the lawyer sees Always ask the client for additional options after you ve put forth your ideas What have I overlooked? THE COUNSELING PROCESS 4. Identify consequences. Legal consequences; Non-legal consequences; Lawyer may have better industry knowledge. If you have represented hundreds of restaurants, you have a better idea of the problems than a cook who wants to open his first restaurant. 12

14 9/20/2017 THE COUNSELING PROCESS 5. Make a decision. Remind the client that the failure to make a decision is, in itself, a decision. Respond to the client s cognitive illusions (beliefs or attitudes that produce illogical conclusions.) Value Consequences: Best likely, Worst likely, best/worst possible INTERVENING IN CLIENT DECISIONS What do you do when you think the client is making a mistake? Clients misjudge likely outcomes. They may be certain they are right and that no independent fact-finder could see it any other way. 13

15 9/20/2017 INTERVENING IN CLIENT DECISIONS Misprediction client has reached conclusion based on erroneous predictions. Potentially insufficient data bases. Cognitive illusions. Sunk costs throwing good money after bad. Gambler s fallacy lost last four, we re due for a win. Endowment effect (client assets are given special value; overvalued v. what market would pay). Overconfidence phenomenon I ll beat the odds; above avg. Self-serving bias (unwarranted stock in rightness & strength of claims). OPEN COMMUNICATION Rule 1.4 Communication A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. A lawyer shall inform the client of facts pertinent to the matter and of communications from another party that may significantly affect settlement or resolution of the matter. 14

16 9/20/2017 RESISTING THE CLIENT Sometimes the lawyer may refuse to implement client choices. The borderland of intervention Client decisions contravene your views of the client s best interest, but are neither immoral nor illegal, nor based on misprediction Lawyer is neither hired gun nor arbiter of morality You are free to express misgivings & withdraw if necessary WITHDRAWAL Rule 1.16: Declining Or Terminating Representation (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (1) the representation will result in violation of the Rules of Professional Conduct or other law; (2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or (3) the lawyer is discharged. 15

17 9/20/2017 WITHDRAWAL (b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or if: (1) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is illegal or unjust; (2) the client has used the lawyer's services to perpetrate a crime or fraud; (3) a client insists upon pursuing an objective that the lawyer considers repugnant or imprudent; WITHDRAWAL (4) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; (5) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or (6) other good cause for withdrawal exists. 16

18 9/20/2017 WITHDRAWAL (c)in any court proceeding, counsel of record shall not withdraw except by leave of court after compliance with notice requirements pursuant to applicable Rules of Court. In any other matter, a lawyer shall continue representation notwithstanding good cause for terminating the representation, when ordered to do so by a tribunal. (d)upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, refunding any advance payment of fee that has not been earned and handling records as indicated in paragraph (e). (e)[omitted: rule for returning documents] WITHDRAWAL The lawyer s best protection in a withdrawal situation is: 1. To have an engagement agreement that provides that the lawyer may terminate the arrangement if ethical circumstances allow. Sample language is in the outline. 2. Failing an agreement in advance, getting the client to sign an agreed withdrawal letter or having the client endorse a sketch order withdrawing from a case is the next-best method. Courts, however, will not usually allow counsel to withdraw without some kind of showing or hearing. This is especially true in the federal courts of the Eastern District of Virginia. There, if you make an appearance, plan on being in the case for the duration. 17

19 9/20/2017 WHY RETURN OF THE COUNSELLOR AT LAW? Because we serve more interests than just our clients. Because we have industry knowledge that our clients need. Because the skills lawyers have are needed by our communities, government, non-profits, community, civic and religious organizations. Because our role as counselor is at the very core of why we are a licensed profession. THANK YOU! I ll stick around for any questions you may have. 18

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21 Return of the Counsellor at Law The Process of Ethical Legal Counseling Today What is a Counsellor at Law? My license says: Attorney and Counsellor at Law We are licensed counselors. A problem-solver. Legal problem-solver. We can t just use half of our license. We are attorneys and counselors. The Rules of Professional Conduct recognize that we represent clients and are public citizen[s] having special responsibility for the quality of justice. (Preamble to the Rules) The Preamble sets out noble aspirations about what a lawyer is to be. We have a role as public citizen, legal educators, defenders of the defenseless and guardians of our profession. We are guided by our conscience and uphold the ideals of public service. The Preamble states: As a public citizen, a lawyer should seek improvement of the law, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance, and should therefore devote professional time and civic influence in their behalf. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest. Many of a lawyer's professional responsibilities are prescribed in the Rules of Professional Conduct, as well as substantive and procedural law. However, a lawyer is also guided by personal conscience and the approbation of professional peers. A lawyer should strive to attain the highest level of skill, to improve the law and the legal profession, and to exemplify the legal profession's ideals of public service. Preamble, Rules of Professional Conduct. What do we mean by the return of the Counsellor at Law? Where did they go? Jack W. (JB) Burtch Attorney at Law 1802 Bayberry Court Suite 302 Richmond, Virginia P F jb@burtchlaw.com burtchlaw.com

22 Lawyer as hired gun. Lawyer as fixer. Lawyer as doer of deals. Lawyer as courtroom advocate. Lawyer as legal researcher. Lawyer as scrivener. Lawyer as consigliore. The lawyer s role is bigger than all of these. Professor Robert W. Gordon of Yale Law School notes, lawyers work on behalf of clients positively requires both for its justification and its successful functioning for the benefit of those same clients in the long run that lawyers also help maintain and refresh the public sphere, the infrastructure of law and cultural convention that constitutes the cement of society. Why Lawyers Can t Just be Hired Guns, in Ethics in Practice (Deborah Rhode, ed., Oxford University Press, 2000). A. There are certain fundamental principles of legal counseling 1. Clients are primary decisions-makers. 2. The problem is theirs, not yours. 3. To adequately advise a client about their problem we need to know their : Personal values Priorities How they value consequences of different types Subjective factors are best weighed by those affected by them. Risk-aversion 4. The lawyer can help identify likely ramifications, but the client determines relative importance. 5. Lawyers want to minimize risk, risk of malpractice. Sometimes makes our priorities different from the client s. Are we urging a course of action to benefit the client or to benefit us? 2

23 B. Lawyer s role in the counseling and advising process The lawyer: Elicits information from clients; Explores alternatives and consequences; Makes clients aware of reasonable alternatives; 1. Ascertain the Client s objectives. 2. Identify possible solutions. Suggest potential solutions. Provide information to clients. 3. Identify potential consequences. Advise of potential consequences. 4. Ascertain basis for client predictions. 5. Ask about questions and concerns. 6. Gives advice. Rule 2.1 Advisor In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation. Comment Scope of Advice [1] A client is entitled to straightforward advice expressing the lawyer's honest assessment. Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront. In presenting advice, a lawyer endeavors to sustain the client's morale and may put advice in as acceptable a form as honesty permits. However, a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client. [2] Advice couched in narrowly legal terms may be of little value to a client, especially where practical considerations, such as cost or effects on other people, are predominant. Purely technical legal advice, therefore, can sometimes be inadequate. It could also ignore, to the client's disadvantage, the relational or emotional factors driving a dispute. In such a case, advice may include the advantages, disadvantages and availability of other dispute resolution processes that might be appropriate under the circumstances. [2a] It is proper for a lawyer to refer to relevant moral and ethical considerations in giving advice. Although a lawyer is not a moral advisor as such, moral and ethical considerations impinge upon most legal questions and may decisively influence how the law will be applied. [3] A client may expressly or impliedly ask the lawyer for purely technical advice. When such a request is made by a client experienced in legal matters, the lawyer may accept it at face value. When such a request is made 3

24 by a client inexperienced in legal matters, however, the lawyer's responsibility as advisor may include indicating that more may be involved than strictly legal considerations. [4] Matters that go beyond strictly legal questions may also be in the domain of another profession. Family matters can involve problems within the professional competence of psychiatry, clinical psychology or social work; business matters can involve problems within the competence of the accounting profession or of financial specialists. Where consultation with a professional in another field is itself something a competent lawyer would recommend, the lawyer should make such a recommendation. At the same time, a lawyer's advice at its best often consists of recommending a course of action in the face of conflicting recommendations of experts. Offering Advice [5] In general, a lawyer is not expected to give advice until asked by the client. However, when a lawyer knows that a client proposes a course of action that is likely to result in substantial adverse legal, moral or ethical consequences to the client or to others, duty to the client under Rule 1.4 may require that the lawyer act if the client's course of action is related to the representation. A lawyer ordinarily has no duty to initiate investigation of a client's affairs or to give advice that the client has indicated is unwanted, but a lawyer may initiate advice to a client when doing so appears to be in the client's interest. There is a radically client-centered view that says lawyers should not give advice. This has been rejected by lawyers but still has some advocates in the academy. 1 Provides advice when sought only after sufficient familiarity with client values, objectives, and concerns. The lawyer s role may be limited by the scope of the lawyer s representation agreement. Rule 1.2 of the Rules of Professional Conduct provides: Scope of Representation (a) A lawyer shall abide by a client's decisions concerning the objectives of representation, subject to paragraphs (b), (c), and (d), and shall consult with the client as to the means by which they are to be pursued. A lawyer shall abide by a client's decision, after consultation with the lawyer, whether to accept an offer of settlement of a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify. 1 For example, Legal Interviewing and Counseling: A Client-Centered Approach by David A.Binder and Susan C. Price (West, 1977) took the position that client-empowerment required that lawyers not give legal advice but simply give clients options which they could choose. This view was roundly criticized by the practicing bar and the authors backed off somewhat in later iterations of their text. But the view persists among some lawyers that client autonomy requires the lawyer to actually give advice only after every other option has failed. 4

25 (b) A lawyer may limit the objectives of the representation if the client consents after consultation. (c) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning, or application of the law. (d) A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. Rule 1.2 (e) When a lawyer knows that a client expects assistance not permitted by the Rules of Professional Conduct or other law, the lawyer shall consult with the client regarding the relevant limitations on the lawyer's conduct. The comment to the Rule makes it clear that the lawyer has a duty to consult with the client about the means to be used in pursing the client s objectives and advising the client about the advisability of dispute resolution processes. Notably, the comment says that the rules do not define the lawyer s scope of authority in litigation. 2 C. The Counseling Process 1. Make a counseling plan. Make plan to be sure important points get covered. Provide preparatory explanations: Identifies the decisions which need to be made/review the consequences. 2 Both lawyer and client have authority and responsibility in the objectives and means of representation. The client has ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by the law and the lawyer's professional obligations. Within those limits, a client also has a right to consult with the lawyer about the means to be used in pursuing those objectives. In that context, a lawyer shall advise the client about the advantages, disadvantages, and availability of dispute resolution processes that might be appropriate in pursuing these objectives. At the same time, a lawyer is not required to pursue objectives or employ means simply because a client may wish that the lawyer do so. A clear distinction between objectives and means sometimes cannot be drawn, and in many cases the client- lawyer relationship partakes of a joint undertaking. In questions of means, the lawyer should assume responsibility for technical and legal tactical issues, but should defer to the client regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected. These Rules do not define the lawyer's scope of authority in litigation. Comment [1] to Rule 1.2 5

26 2. Clarify Client Objectives. Options often are not apparent until after objectives are articulated. Client objectives may (probably will) change as the case progresses. Decisions often involve subsidiary issues to which previously-identified objectives do not apply Client wants neighbor s dog to stop barking, but does not want to alienate neighbor. 3. Identify alternatives. Usually, the lawyer should begin by identifying alternatives the lawyer sees Always ask the client for additional options after you ve put forth your ideas What have I overlooked? 4. Identify consequences. Legal consequences; Non-legal consequences; Lawyer may have better industry knowledge. If you have represented hundreds of restaurants, you have a better idea of the problems than a cook who wants to open his first restaurant. 4. Make a decision. Remind the client that the failure to make a decision is, in itself, a decision. Respond to the client s cognitive illusions (beliefs or attitudes that produce illogical conclusions.) Value Consequences: Best likely, Worst likely, best/worst possible D. Intervening in client decisions What do you do when you think the client is making a mistake? Clients misjudge likely outcomes. They may be certain they are right and that no independent fact-finder could see it any other way. 6

27 Misprediction client has reached conclusion based on erroneous predictions. Potentially insufficient data bases. Cognitive illusions. Sunk costs throwing good money after bad. Gambler s fallacy lost last four, we re due for a win. Endowment effect (client assets are given special value; overvalued v. what market would pay). Overconfidence phenomenon I ll beat the odds; above avg. Self-serving bias (unwarranted stock in rightness & strength of claims). Anchoring effect (first information is baseline of expectation). Whatever the lawyer s decision about how to proceed, the lawyer must have a clear and open line of communication with the client. Rule 1.4 Communication (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. (c) A lawyer shall inform the client of facts pertinent to the matter and of communications from another party that may significantly affect settlement or resolution of the matter. Sometimes the lawyer may refuse to implement client choices. The borderland of intervention Client decisions contravene your views of the client s best interest, but are neither immoral nor illegal, nor based on misprediction Lawyer is neither hired gun nor arbiter of morality You are free to express misgivings & withdraw if necessary In that case it is essential to consult the Rules for withdrawing. Rule 1.16: Declining Or Terminating Representation 7

28 (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (1) the representation will result in violation of the Rules of Professional Conduct or other law; (2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or (3) the lawyer is discharged. (b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or if: (1) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is illegal or unjust; (2) the client has used the lawyer's services to perpetrate a crime or fraud; (3) a client insists upon pursuing an objective that the lawyer considers repugnant or imprudent; (4) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; (5) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or (6) other good cause for withdrawal exists. (c) In any court proceeding, counsel of record shall not withdraw except by leave of court after compliance with notice requirements pursuant to applicable Rules of Court. In any other matter, a lawyer shall continue representation notwithstanding good cause for terminating the representation, when ordered to do so by a tribunal. (d) (e) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, refunding any advance payment of fee that has not been earned and handling records as indicated in paragraph (e). [omitted: rule for returning documents] The lawyer s best protection in a withdrawal situation is: 8

29 1. To have an engagement agreement that provides that the lawyer may terminate the arrangement if ethical circumstances allow. Sample language would be: Termination by the Firm. The Firm may terminate its representation of Client (to the extent permitted by applicable ethics and/or court rules) if Client: (a) fails to make a requested retainer deposit, (b) fails to make timely payments (within 30 days) of fees and expenses due, (c) breaches any material term of this Agreement, (d) fails to cooperate or follow the Firm s advice on a material matter, (e) if a conflict of interest develops or is discovered, and/or (f) if there exists at any time any fact or circumstance that would, in the Firm s opinion, render the Firm s continuing representation unlawful, unethical, or otherwise inappropriate. If the Firm terminates representation under this section, Client shall take all steps necessary to free the Firm from any further obligation to Client (including signing a motion to withdraw as counsel to be filed in court), and Client shall pay the Firm all fees and expenses incurred before the termination of representation. 2. Failing an agreement in advance, getting the client to sign an agreed withdrawal letter or having the client endorse a sketch order withdrawing from a case is the next-best method. Courts, however, will not usually allow counsel to withdraw without some kind of showing or hearing. This is especially true in the federal courts of the Eastern District of Virginia. There, if you make an appearance, plan on being in the case for the duration. The Rules of Professional Responsibility require that a lawyer abide by the client s decision concerning the objectives of the representation and must consult with the client about the means by which those objectives are to be pursued. (Rule 1.2) Every lawyer, however, must exercise their own best judgment as a public citizen and an officer of the court to protect their clients interests and the interests of justice. After hearing all this why did we title this Return of the Counsellor at Law? Because we serve more interests than just our clients. Because we have industry knowledge that our clients need. Because the skills lawyers have are needed by our communities. Government, non-profits, community, civic and religious organizations. Because our role as counselor is at the very core of why we are a licensed profession. 9

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32 Virginia State Bar - About the Bar - Reflections: A Passion for the Proces of 2 7/15/2009 1:24 PM Virginia State Bar An agency of the Supreme Court of Virginia Home > About the Bar > Reflections: A Passion for the Process by Jack W. Burtch, Jr. Reflections: A Passion for the Process by Jack W. Burtch, Jr. The longer I practice law, the more I discover opportunities to engage in solving client dilemmas. I am not a legal scholar. I lack any sense that the law is a conceptual unity. Yet what has kept me engaged in my practice for more than thirty years is a passion for the process. My journey has been somewhat paradoxical. Long ago, I was told it was important to establish myself in a legal specialty, because the common wisdom held that success in law practice meant success in specialization. After leaving the Army, I landed my first job in the Labor Section of a large law firm. For the next six years, I learned by trial and error the fundamentals of a labor and employment practice. I also learned, by observing the experienced lawyers in our section, how to handle myself in a meeting, how to think strategically about a case, and how to interact with clients. Independence has always been an important value for me. When I didn t find enough of it in the large firm, I joined a small firm. Even though some labor and employment clients came with me, I found myself doing other types of legal work, including some family law. I soon realized that while I actually enjoyed the stylized combat of labor-management disputes, participating in the process of separating children from their parents was more than I could handle. Likewise, representing a client in a dispute over who was liable for a boxcar of damaged widgets engaged no part of my legal curiosity. But the law of the workplace offered continuing fascination. Conceptually, it was challenging. Practically, it put me in the middle of hotly-contested issues that could actually be resolved. So while I began my legal career learning to litigate employment disputes before courts, National Labor Relations Board judges and arbitrators, I soon found myself intrigued by the process of dispute resolution itself. This interest crystallized in federal court one morning as I was about to begin a jury trial. Judge Williams looked at the jury panel and said, Ladies and gentlemen, can you sit through a case where two otherwise sophisticated businessmen can t solve a problem between themselves but have to bring in total strangers to do it for them? The judge s question was in the back of my head when, shortly thereafter, I signed up for a course in mediation, then agreed to teach a course in negotiations at the University of Richmond law school. When I was fresh out of law school, I thought being a good lawyer meant representing clients and winning cases. But eventually I began to pay attention to how an event becomes a case; how people can conclude that a legal solution is better than some other kind of solution. Armed with this knowledge, I was pleased to be asked to teach a second law school class in client counseling. I saw this new course as my chance to delve deeper into the client decision mentality, to examine how people determine which goals are essential, which are secondary, and which are not actually goals at all. My conclusion? The lawyer s primary job is to figure

33 Virginia State Bar - About the Bar - Reflections: A Passion for the Proces of 2 7/15/2009 1:24 PM out what the real problem really is. And today, when each new client comes in the door, that s the first question I ask myself. I wasn t thinking much about process when I was studying torts and contracts in law school. Or when I was focused on litigation deadlines and court dates working for a large law firm. But through the years, I ve developed a passion for the problem and a fascination with the process that leads to its solution. I ve learned how otherwise ordinary events become disputes soluble by legal analysis and conflict resolution. And that is why I want to continue practicing law -- at least, until I finally get it right Jack W. Burtch, Jr. Jack W. Burtch Jr. Jack W. Burtch, Jr. is a partner in the Richmond, Virginia law firm of Macaulay & Burtch, P.C. Updated: July 13, Virginia State Bar Privacy Policy Site Map 707 East Main Street, Suite 1500 Richmond, Virginia TDD/Voice Line (Hearing-Impaired): Office Hours: Mon.-Fri. 8:15 a.m. to 4:45 p.m. (excluding holidays) The Clerk's Office does not accept filings after 4:45 p.m.

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35 The Lawyer As Counselor by Jack W. Burtch Jr. In my second year of law school, I began working for a well-known Nashville defense lawyer. He was in his early sixties then, as I am now. One day he said, JB, I want you to go to the county health department, find all the pamphlets on mental health, and bring them back here. Thinking this was somewhat unusual, I asked the reason for his request. Because many of my clients have trouble accepting reality, he said, and I want to find out why. Sometimes simply bringing clients into reality is our job. Situations that seem mysterious to our clients often appear clear to us. This is not because lawyers are smarter, or have better insight, or are gifted with legal clairvoyance. It s simply because the experienced lawyer has been down this road before and the territory is familiar. When I look at my law license with its faded signatures, I see the words Attorney and Counsellor at Law. For many years, only that first word registered. I was a lawyer. That meant I represented clients in their causes. Within the bounds of morality and legality, I helped them achieve their goals by zealous advocacy. I listened to what they wanted and tried to make it happen for them. Yet as the years went by, I began to notice something unexpected. In my practice in labor and employment matters, I could now see that certain types of situations tended to produce certain types of problems. Although each client s case was unique, I began to see patterns in both causes and solutions. This wasn t true for every problem, of course, but it was for many. It then dawned on me that I might know more about how a situation would play out than those who had been enmeshed in it from the beginning. I was suddenly able to predict how a group of employees might respond to a new management directive. I now realized the larger trajectory of an executive s career could be forecast by examining a few recent assignments and duties. Creating Opportunity out of Disappointment For me, the counselor s role came into focus about fifteen years ago when an executive called and asked for an appointment. I don t know why I m calling, he said, but I ve talked with some friends, and they strongly suggested I come and talk to you. I didn t know why he was calling either, but I was certainly intrigued. And after we had chatted for about half an hour, I started to see the picture. Here was a successful executive in a large organization who was being nudged toward the sidelines. To me, the signs were obvious: more responsibility for special projects; less line accountability; exclusion from meetings he once led; less informal interaction with top management. I thought he was on the way out, but he didn t have a clue. So, in the nicest possible way, I told him what I saw and suggested that his time with this company might be coming to an end. After his initial, emotional reaction, he sat very still for some minutes. Then he looked up and said, They want me out. But they don t know I m now onto their game. He paused again and asked, How can we use what we now know to get what we want? In the shortest time I d ever seen, this client was ready to turn disappointment into opportunity. We met again to develop a strategic plan, and a few months later my client walked out of his office for the last time, as a happy man. Any lawyer who has practiced for a long time has had similar experiences. Situations that seem mysterious to our clients often appear clear to us. This is not because lawyers are smarter, or have better insight, or are gifted with legal clairvoyance. It s simply because the experienced lawyer has been down this road before and the territory is familiar. Notwithstanding the vagaries and complexities of human character and motivation, people often react to given situations within a range of somewhat predictable responses. The longer we practice, the more familiar we are with those likely responses. 26 VIRGINIA LAWYER April 2010 Vol. 58 SENIOR LAWYERS CONFERENCE

36 THE LAWYER AS COUNSELOR Capitalizing on Industry Knowledge In academic legal counseling terminology, the lawyer s accumulated past experience in a particular field is called industry knowledge. This term refers to the information gathered by working through the same types of legal problems over and over again. Land-use lawyers know how land developers tend to react when interest rates drop; criminal lawyers know that experienced criminal defendants have different fears than people charged for the first time; trial lawyers know that eyewitness testimony isn t always right. Experienced lawyers armed with industry knowledge have an advantage others do not. These lawyers can advise clients about legal issues and at the same time offer the benefit of their experience. Experienced lawyers can suggest what types of approaches tend to work best and what good outcomes might result often to the surprise of clients who haven t considered these options before. Practicing Legal Counseling I did my first actual legal counseling by accident. Or at least I didn t know I was doing it; only hindsight made it clear. I was the new associate in a large law firm. Everyone on the labor team, including my boss, was out of town. The union employees of a client company had gone on strike and were picketing the plant. This was expected and not considered a problem. However, early one afternoon I got a phone call from the manager of the trucking company next door to the plant. Some pickets had moved over to the trucking site, and the unionized truck drivers were refusing to cross the picket line. The truck facility was functionally shut down. Its manager told me to go to court and get an injunction to make the pickets go away. I got the facts from him as best I could and did some quick legal research. Because the company on strike owned the trucking company and was arguably in a related operation, I didn t think an injunction was likely. In fact, there was a good chance that losing an injunction could actually worsen the trucking company s current situation. I told the manager what I had found out, and he told me I was wrong. Late that afternoon, I drove over to the truck yard. A small band of pickets was patrolling the entrance. In the middle of the yard was a large trailer. The name of the company being struck was painted, in large letters, along its entire length. I suggested to the manager it might be a good idea to move the trailer off the property, since it looked like a billboard supporting the struck company. He thanked me for my thoughts, again told me to get an injunction, and ushered me out the door. The next morning, I got a call from the irritated general counsel of the parent company in New York. He said if I didn t have the fortitude to get an injunction, my boss would. So I went back over to the yard to get affidavits for an injunction hearing. After finishing up, I said to the manager, Just do me a favor. Move the trailer and see what happens. He humored me and hooked the trailer up to a truck. As it headed out the gate, the pickets followed in a line, looking for all the world like a small parade. Clearly, the men were picketing the trailer, not the truck company. Practicing Client-Centered Counseling At the time of that strike, I was a new lawyer. I wasn t a legal genius, but I had blundered onto the revelation that not every legal problem has a legal solution. While I had not done any intentional counseling, I had proposed an alternate way to achieve the client s goal without going to court. Fortunately the trucking client s goal was clear, but that s not always the case. In order to discern client goals, the lawyer has to somehow get inside the client s head and view the issue through the client s eyes. In modern legal counseling theory, this is known as client-centered counseling. It focuses on the client s needs, desires, values, and attitudes. This theory sees it as the lawyer s duty to present various options that address the issue based on the client s orientation. Client-centered counseling derived from the psychological theory developed by Carl Rogers. Rogers believed that human beings seek to become self-actualized to achieve their full potential. The counselor s job is to show empathy, respect, and understanding so clients can make healthy decisions for themselves and develop their own potential to the fullest extent. 1 In legal theory, the client-centered approach was first introduced by Binder and Price 2 in the late 1970s. This approach has also been referred to as the autonomy or informed consent approach. 3 Binder and Price introduced this model as an alternative to what they deemed to be the traditional approach. 4 Other names for this approach are the paternalist and best interest approach. 5 SENIOR LAWYERS CONFERENCE Vol. 58 April 2010 VIRGINIA LAWYER 27