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 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 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 consequences to the client, 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. Similarly, when a matter is
likely to involve litigation, it may be necessary under Rule 1.4 to
inform the client of forms of dispute resolution that might constitute
reasonable alternatives to litigation. 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.
