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self-study / Legal Ethics

Mar. 22, 2019

How not to be a lawyer

Mark L. Tuft

Partner, Womble Bond Dickinson US LLP

Legal malpractice (certified), media law, civil and criminal litigation in federal and state courts

1333 North California Boulevard Suite 450
Walnut Creek , CA 94596

Phone: (415) 765-6215


UC Hastings

New York Times News Service

A lawyer who finds himself in a situation of having to turn on his client in an attempt to justify his own intentional misconduct is in the wrong profession. This might appear to sweep with too broad a brush, but it identifies a situation that illustrates far too often a misunderstanding of the essence of lawyering. Michael Cohen's misadventures are a recent example of defying the first principles of lawyering and contribute to an already long and sorrowful history of how not to be a lawyer. A lawyer has the right to establish a defense to a claim of malpractice or other controversy between the lawyer and a client. There may also be occasions where due process considerations warrant the right of a lawyer to establish a defense to a criminal charge or civil claim against the lawyer based on conduct in which a client was involved. But claiming in a public forum or in a tell-all book that the lawyer is basically a fine fellow who was victimized by an overbearing and all powerful client defies a basic understanding of what it means to be a lawyer.

What it means to be a lawyer can be summed up in three words -- independent professional judgment. Maintaining professional independence and exercising professional judgment define the essence of lawyering. The rules of professional conduct are written in large measure to ensure professional independence. But what does professional independence actually mean in real terms?

For starters, being a lawyer does not mean having to do the client's bidding. The attorney-client relationship is a special form of agency. An attorney's duties are not limited to the client and, unlike other agents, attorneys are obligated to maintain professional independence from their clients and the subject matter of the representation. Client loyalty does not mean blindly following a client's instructions. Instead, a lawyer's undivided allegiance means acting in a manner consistent with the client's best interests. Restatement Third, The Law Governing Lawyers Section 16(a). The process of advancing and protecting the client's interests involves the exercise of professional judgment. A lawyer's duties are ordinarily limited to matters covered by the representation. The concept that a lawyer's representation of a client does not constitute an endorsement of the client's views or conduct is intended to facilitate the representation of unpopular clients (ABA Model Rule 1.2(b) and Comment [5]); yet, it also illustrates the need for a separate identity from the client and the subject matter of the representation.

So, what does it mean to be independent? In simple terms it means having a degree of professional detachment from the client and the client's interests. Legal ethics places a high value on autonomy of thought, conscience and action. Having ascertained the client's objectives of the representation, the lawyer is expected to consult with the client as to the means by which they are to be pursued. California Rules 1.2(a) and 1.4(a)(2). Lawyers generally retain authority to exercise professional discretion in determining the means in carrying out the representation. ABA Model Rule 1.3, Comment [1]. The job is not to satisfy the client's every wish or win at all costs. Over the years, rules of professional conduct have toned down the concept of zeal. Today, zealous representation is understood as acting with commitment and dedication in protecting and advancing the client's interests within the bounds of the law without having to press for every possible advantage. ABA Model Rule 1.3, Comment [3].

Professional independence requires an appreciation of the critical distinction between advice regarding the legal aspects and consequences of a client's proposed course of conduct and recommending the means by which a crime or fraud may be committed with impunity. California Rule 1.2.l and Comment [1]. A similar distinction exists between assisting a client in making a good faith determination of the validity, scope, meaning or application of the law and assisting in conduct the lawyer knows is criminal, fraudulent or a violation of law, ruling or rule of a tribunal. Id. "Knows" for purposes of professional discipline means actual knowledge of the fact in question. However, a person's knowledge may be inferred from the circumstances. California Rule 1.0.1(k). Circumstances may impose a duty of inquiry on the lawyer which the lawyer is not free to ignore. Knowing where the line is drawn between permissible and prohibited conduct typically requires reflection and critical thinking on the part of the lawyer.

Situations that threaten a lawyer's professional independence are scattered throughout the rules of professional conduct. (E.g., California Rules 1.7 (current client conflicts); 1.8 (current client conflicts, specific rules), 5.4 (professional independence of a lawyer) and 2.1 (advisor)). Stepping into a client's shoes in seeking to fix the client's legal problems invariably involves risks of becoming complicit in the client's activities. Drafting or delivering documents that the lawyer knows are fraudulent, creating or tampering with evidence in an investigation or claim involving client conduct are obvious examples of impermissible assistance. In extreme cases, a lawyer may be required to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act. California Rule 4.1(b). However, unlike ABA Model Rule 4.1(b), the rule in California does not permit disclosure prohibited by Business and Professions Code Section 6068(e)(1) or California Rule 1.6. In that instance, the lawyer's obligation is to consult with the client and withdraw if the client refuses to consent to the lawyer taking appropriate remedial action. Rule 4.1, Comment [3]

Thus, effective communication is an essential aspect of lawyering. Lawyer conduct rules define situations when lawyers must consult with clients but not how to communicate. Communication is an acquired skill and it takes practice. It is not something that can be learned simply from reading rules or a text book in law school.

If a lawyer comes to know that a client expects assistance not permitted by the rules or other law, the lawyer is required to consult with the client about any relevant limitation on the lawyer's conduct. California Rule 1.4.(a)(4) and see Rule 1.2.1, Comment [5]. The operative word is "consult." The term means having a conference or discussion with the client. It often will not do for an attorney to simply state "The rules prevent me from doing what you ask" or "I will have to withdraw if you persist."

We are all aware of clients who are adamant and who won't take "no" for an answer. There will likely be clients in one's career who question the lawyer's loyalty to the client's cause. It is not unexpected for a client to say: "If you are unwilling to do what I ask, I will find someone who will" (and sadly they may find that lawyer). None of these reactions lessens the duty to consult and if necessary remonstrate with the client. If the client is of one mind and refuses to abide by the lawyer's advice, other ethical duties come into play, including whether the lawyer is able to competently and diligently represent the client and whether the lawyer is required to withdraw (see Rule 1.16(a)) or has good cause to withdraw (Rule 1.16(b)).

That brings us to exercising professional judgment. Lawyering often entails the exercise of sensitive professional and moral judgment guided by the principles underlying the rules. Clients are entitled to (and are willing to pay for) a lawyer's honest assessment of the client's legal matter, the available alternatives and the lawyer's candid advice. Clients are entitled to straight forward advice and not simply what the client wants to hear. ABA Model Rule 2.1, Comment [1] -- "Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront." Lawyers should not be deterred from giving candid advice for fear that the client will reject it or find it unpalatable. The statement has been attributed to Elihu Root that "about half the practice of a decent lawyer consists of telling would-be clients that they are damned fools and should stop." (Snyder, "Is attorney-client confidentiality necessary?" Georgetown Journal of Legal Ethics, Spring 2002, p. 33). Lincoln is also said to have advised clients that while they may have a legal right to pursue a grievance, they are better off spending their time and money pursuing other things. Counseling clients is an acquired skill and an integral aspect of the art of practicing law. Couching legal advice in narrow technical terms may not always be adequate. A lawyer who is asked to render legal advice is not precluded from including relevant moral and ethical considerations. California Rule 2.1, Comment [2] and see Rest. Section 94(3). Although a lawyer is not a moral advisor as such, moral and ethical considerations arise in many legal questions and may influence how the law will be applied. This is commonly referred to as "integrity ethics."

Lawyers have always been under pressure to satisfy clients and meet their needs. Sometimes it is a matter of keeping one's job, making partner in the firm, keeping the business, and gaining prestige. None of this is new. Unfortunately, the law is filled with cases of lawyers who misunderstood or ignored the fundamental principles of lawyering resulting in disastrous consequences including the loss of the license to practice and potential criminal and civil liability. As the refrain goes in the song by Peter Paul and Mary, "when will they ever learn?"


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