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"But I Didn't Think My Client Was Going To Do That!"

At times it can be tempting to take the easy way out when asked for legal advice and you simply espouse generic or technically correct advice, or just share a little off-the-cuff advice. Why is this? Well, time demands can prevent the necessary research from occurring or perhaps the person asking isn’t an important client. Perhaps you’re overly comfortable with the attorney/client relationship and didn’t realize the significance of the issue. Perhaps you knew that the client really didn’t want to hear what would be the best advice. Perhaps the person asking isn’t even a client. Regardless of the reason, taking the easy way out is never a good idea.

Sometime ago, an attorney received an inquiry from a long-term client. This client owned an airplane that was in the process of being substantially renovated and upgraded. Due to time delays and cost overruns, however, a significant fee dispute was in play. The question raised was could the client remove the property from the premises of the repair facility because the client felt possession would strengthen his position in the fee dispute. Apparently not wanting to take the time to discuss the situation in depth, the attorney simply gave a technically correct answer of “yes, recovery of property that you already own is not illegal. You have a right to its possession.” The client shortly thereafter recovered the property and was subsequently arrested due to the manner in which the property was recovered. Eventually the client incurred a substantial loss as a result of a civil suit brought by the repair facility. Client then sought recovery from the attorney alleging negligent advice. The attorney’s defense was, in essence, “But I didn’t think my client was going to do that!”

In another situation, a lawyer was representing the executor of an estate. The attorney described the situation as one of his having little involvement because the client was really running the show. The client simply needed a little advice and direction from time to time. This client did contact him at one point and she shared that the Commissioner of Accounts had reached a conclusion, regarding the calculation as to how certain funds should be distributed, that the client disagreed with. The lawyer casually shared that he too disagreed with the Commissioner’s conclusion and also let the client know that if an issue were to ever arise he would speak with the Commissioner in order to clear up the confusion. Unfortunately, this client took that response as an implicit ok to go ahead and disperse the funds in accordance with her interpretation of the will. Needless to say, the Commissioner did not approve the accounting and now there’s a problem.

Believing that you don’t have the time or that this isn’t an important person, or just saying what you think the client wants to hear are all rationalizations. When rationalizations are used to justify a decision to take the easy way out, trouble may be just around the corner. Such advice, which really is the equivalent of giving advice in a vacuum, provides a false sense of security. Why? Because you fail to consider how the client might rely or act on the advice.

Giving advice in a vacuum is rarely appropriate, particularly in the absence of adequate and documented disclaimers. Even if technically allowable under some defined set of circumstances, doing so fails to take into account the realities of the attorney/client relationship. Clients do expect their attorney to stand by any and all advice given and the client will consider an attorney’s attempt to claim an intentional limited knowledge of the circumstances as irrelevant. The client will still seek to hold their attorney accountable for any unanticipated fallout that occurs once the client acts on the advice received.

Consider Rule 1.4 of the ABA Model Rules of Professional Conduct entitled Communication, which states in section (b), “A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” Couple this with the comments of Section [1] under Rule 2.1, Advisor, which state, “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. … However, a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.” It is clear that in the above examples the attorneys should have taken the conversations further and at a minimum inquired about their client’s proposed course of action. By giving advice in a vacuum, these attorneys allowed their clients to act without the benefit of legal advice given with full awareness of the entire situation. Had these attorneys known what their clients were thinking, the advice would have been, of necessity, quite different. 

In the end a defense of “I didn’t know my client would do that” is no defense at all, even with perceived short unimportant calls where one is tempted to not take the time to ask the right questions. There is no easy way out or middle ground when someone asks for legal advice. There really are just two options. One is to say that you are unable to provide the advice asked for and the other is to take the time to give a competent, thorough, and reasoned response based upon full awareness of the client’s situation. Put yourself in your client’s shoes, would you expect anything less when asking for legal advice? Somehow, I doubt it.

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