In 2015, in a blog post titled How Pushy Should Attorneys Be?, I described how my practice has evolved over the years in terms of being more likely to push my opinion on clients than I would have customarily in my earlier career. Since then, I have read Atul Gawande’s Being Mortal in which he describes the trend towards a more collaborative relationship between doctors and patients and attended a talk by Nancy Kline, author of Time to Think, who proposes that professionals should give their clients space to think through their decisions so that they come to the right solution themselves.
As a result, I now have four potential models of the attorney’s role in advising clients:
- Resource. As I discussed in my prior blog, in law school we were taught a philosophy of the attorney-client relationship that placed the client in the primary role in making decisions, with the attorney acting as a resource to explain the law, the various options available and the consequences and likely success of each option in terms of reaching the client’s goals. Based on this information, the client is to make decisions on how to move forward.
- Counseling. In practice, I ran into a few problems with the resource-only approach. Sometimes the legal options and their potential consequences are too complicated for clients to grasp entirely. This is especially true when they depend on the client’s health and ability to live independently in the future and, in terms of a couple, which if either spouse will need care. The potential outcomes and choices are too numerous for anyone to entirely grasp. I have found that clients often want my advice on how to proceed. As I have had more experience with clients, I have become more likely to cut through the tangle of potential courses of action and advise them on how to proceed. Lawyers are sometimes called counselors or portray themselves as counselors-at-law, which better describes my role as I have matured as an attorney.
- Collaborating. In Being Mortal, physician and writer Atul Gawande describes and finds fault with the traditional doctor-patient relationship with the doctor simply making decisions for the patient as to his care based on what he or she thinks is best. He describes this is a “paternalistic,” doctor-knows-best model. Gawande describes the second type of doctor-patient as “informative,” akin to the resource model for attorneys I was taught in law school: “We tell you the facts and figures. The rest is up to you. ‘Here’s what the red pill does, and here’s what the blue pill does,’ we say. ‘Which do you want?’ It’s a retail relationship. The doctor is the technical expert. The patient is the consumer.” He reports that this works well “when the choices are clear, the trade-offs are straightforward, and people have clear preferences.” But as I have found when the legal choices and their consequences are complex, the informative or resource role for physicians works less well when medical options and their results are less certain. “In truth,” Gawande says, “neither [the paternalistic or informative] type is quite what people desire. We want information and control, but we also want guidance.” He proposes a shared decision making or “interpretive” model: