Greetings from the Smith, Gambrell & Russell Litigation Blog:
During challenging times like these, everyone could use a trusted advisor. With this in mind, the SGR Litigation Blog presents a three-part post entitled “They Don’t Call Us ‘Counselor’ for Nothing.” We hope you enjoy this series, which examines how attorneys counsel their clients by doing more than just providing legal advice.
They Don’t Call Us “Counselor” For Nothing: Part One of Three
The title “counselor” is often applied to lawyers; however, it connotes far more than one who gives legal advice.[1] We have ethical and professional responsibilities to “counsel” clients, as well as to provide legal advice. A lawyer’s best and most important work is often done in private counseling with a client who looks to the lawyer for wisdom, not just knowledge. The concept of “counselor” includes providing sound judgment, communicating that judgment effectively to the client, and helping the client emotionally survive our adversarial system of justice. In this way, our role as counselors can be as important, if not more important, than our role as legal advisors.
Attorneys fulfill an essential function in our adversarial system. The right to counsel is embodied in our federal and state constitutions.[2] Counsel not only protects a client’s legal rights, but also “provides a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications.”[3]
Explaining practical implications requires more than simply providing legal advice and protecting legal rights. “That which is simple, orderly, and necessary to the lawyer — to the untrained layman — may appear intricate, complex, and mysterious.”[4] Explaining practical implications also involves exercising sound judgment. Just because something can be done does not mean it should be done.[5] While legal analysis is part of sound judgment, a healthy dose of common sense should temper any legal advice. Georgia’s Code of Professional Conduct speaks to this: “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,” and counsel can “refer to relevant moral and ethical considerations in giving advice.”[6] Counsel should aspire to offer clients “good judgment” in addition to legal competence. [7]
Beyond providing sound judgment, “a lawyer endeavors to sustain the client’s morale.”[8] As the client’s advocate, counsel often is the only barrier standing between the client and loss of liberty, livelihood, license, or a lifetime’s earnings. Thus, sustaining the client’s morale as the wheels of justice grind is essential. It truly requires counsel to function as a “counselor” in a more generic sense of the word.
Why is sustaining the client’s morale important? The client may need to weather a withering cross-examination, or pervasive, unflattering media coverage, or abandonment by fair-weather friends. The client needs to effectively participate in his or her defense. The client needs to make life-altering decisions with arbitrary deadlines. Often, adversaries (and, on occasion, judges) make a concerted effort to break your client’s will. The pressure on a client can be crushing.
This counselor-client relationship — as distinct from the attorney-client relationship — is comparable to the priest-penitent, husband-wife, and psychotherapist–patient relationships, all of which are protected by privileges. In all of these relationships, confidences are revealed and, we hope, emotional support is provided. In litigation, particularly a criminal prosecution, when clients are faced with, perhaps, the worst situation of their lifetimes and forced to choose among unpleasant alternatives, the need for emotional support and sustaining morale is critical.
But, when sustaining morale, counsel should strive to “[m]aintain the sympathetic detachment that permits objective and independent advice to clients.”[9] Counsel needs to protect against becoming too close, too attached emotionally to the client. “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. A lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.” [10] Admittedly, rendering candid advice that is unpalatable to the client while trying to sustain the client’s morale is a delicate balance.
Sustaining the client’s morale –- helping a client cope –- under extremely stressful circumstances requires skills beyond the technical legal competence necessary to recognize and protect a client’s legal rights. 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, predominate. Here is where our role as counselor comes into play—and, indeed, where we earn the title.
[1] “Counselor-at-law” means a lawyer who “gives advice in law and manages cases for clients in court.” Webster’s Ninth New Collegiate Dictionary 296 (1993).
[2] U. S. Const., 6th Amendment; Ga. Const., Bill of Rights Article I, Section I, Paragraph XIV. “[A client] requires the guiding hand of counsel at every step in the proceedings against him…” Johnson v. Zerbst, 304 U.S. 458, 463-464 (1938).
[3] Wilcoxen v. Aldredge, 192 Ga. 634, 639 (1941); [2], Preamble, Georgia Rules Of Professional Conduct; [2], Preamble, Model Rules of Professional Conduct.
[4] Johnson, 304 U.S. at 463-464.
[5] When explaining to a client why he should not take a particular course of action, there are usually two parallel justifications. The first is that the proposed course of action, morally, is not the right thing to do. The second is that there will be bad consequences if the client takes the proposed course of action.
[6] Comment [2], Rule 2.1, Georgia Rules of Professional Conduct.
[7] “A Lawyer’s Creed,” Professionalism, Ga. State Bar.
[8] Comment [1], Rule 2.1, Georgia Rules of Professional Conduct.
[9] “Specific Aspirational Ideals,” Professionalism, Ga. State Bar.
[10] Rule 2.1, Georgia Rules of Professional Conduct.