As attorneys, we play two fundamental roles: we are both advocates and counselors. As advocates, we present the law and facts in a manner that best advances our clients’ positions. As counselors, we inform our clients of their options along with the risks of pursuing those options. Although these distinct roles may seem obvious to attorneys, they are often unclear to clients. I have seen this issue present itself most often in two common scenarios:
Scenario One: A potential new client consults with an attorney. After identifying the material facts and applicable law, the attorney advises the potential new client of their claims/defenses, the pros and cons of pursuing them, and the relative strength and weakness of their claims/defenses. The client is ultimately displeased that the attorney believes their claims/defenses are not “perfect” and laments that the attorney clearly lacks confidence and/or does not believe in the case.
Scenario Two: After the attorney advises the client of their claims/defenses, the attorney drafts an advocacy piece, such as a motion or demand letter, for the client’s review. Because the advocacy piece focuses only on the “good” facts/law, the client decides that the advice the attorney gave them about the weaknesses of their case no longer applies. Instead, the client decides the advocacy piece definitively establishes the strength of their claims/defenses.
There is no “one size fits all” approach to helping clients understand the distinct roles we play as advocates and counselors, but here is the approach I have found works best for my practice. First, I provide my clients a client guide, which explains the dual roles attorneys play.
Early in every representation I undertake, I introduce my client to their two lawyers: Advocate Alden and Counselor Alden. I explain that Advocate Alden is the lawyer who interacts with opposing counsel, the judge, and other third parties and is likely closer to the attorneys they have seen portrayed on tv and in movies. She is confident, relentless, and will never publicly take a position that is adverse to the client’s interest. Counselor Alden is the lawyer who speaks only with them confidentially. She provides legal advice based on her experience and often tells clients things they don’t want to hear, including weaknesses in their case, so that they can make informed decisions about how to proceed.
Once clients understand Counselor Alden is not the person who shows up to court, depositions, etc., they often feel better about being told the weaknesses of their claims/defenses. However, I frequently remind them that they should take advice from their counselor, not their advocate. Advocates take legal positions; counselors advise on the strength of those positions and considerations clients must make when taking them. I often explain that Advocate Alden may be more fun to hang out with, but Counselor Alden is more practical and is the person they should trust when they are unsure how to proceed.
Often, the best advice attorneys can provide clients as counselors is to not take legal action at all. This may because the client’s claims/defenses are weak, the expense of pursuing them would not be a good investment, or the client otherwise cannot afford to litigate the case to the finish line. When I have conversations like this with clients, they often respond that they still believe taking action is nevertheless the best course of action. As a result, I find myself saying something like this to potential new clients at least once a week: “It would be in my financial interest to tell you to hire me. I am telling you not to hire me because that is what I believe is in your best financial interest. If someone advises you to do something that is adverse to their own financial interest, you should seriously consider that advice. Perhaps there is another attorney out there who will be willing to take your money, but I won’t take a client’s money if I don’t believe they are likely to achieve a favorable result.” Often, clients appreciate that candor and respect for their financial resources.
JW’s unwavering commitment to delivering outstanding legal advice is what separates us from many other firms. Having difficult conversations with clients about their cases is an inevitable aspect of practicing law, but the ability to differentiate our roles as advocates from counselors often makes those conversations easier for our clients to accept.
