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:
Here the doctor’s role is to help patients determine what they want. Interpretive doctors ask, “What is most important to you? What are your worries?” Then, when they know your answers, they tell you about the red pill and the blue pill and which one would most help you achieve your priorities.
This may be no different from the what I described as counseling, since I always start by asking clients their goals. But describing the attorney as a “collaborator” in shared decision making has a better flavor to it. My website, ElderLawAnswers.com, has always said “we believe the combination of an informed consumer and a qualified attorney produces the best legal results for the client.”
4. Listening. While the intrusiveness of attorney’s role in the three models above varies from being a mere provider of information to getting into the trenches and making decisions with the client, Nancy Kline
suggests a more hands-off approach. She says that clients often can figure out the best decision or course of action for themselves if given the space and time to think through their decision. Lawyers (and doctors), however, are often too busy to take the necessary time. But more importantly, they often feel that their expertise and experience is what matters, so they should provide it. That is what they’re paid for, and if they don’t offer information and advice, how can they earn their fee? Kline, in her talk, related a number of stories in which the advisor simply encouraged the client to keep talking and thinking through his decision until he came to resolution. Universally (at least in the stories she told us), the client valued the time with the professional more than if she had simply told him what she thought he should do, and was more likely to follow through on the decision he came to.
suggests a more hands-off approach. She says that clients often can figure out the best decision or course of action for themselves if given the space and time to think through their decision. Lawyers (and doctors), however, are often too busy to take the necessary time. But more importantly, they often feel that their expertise and experience is what matters, so they should provide it. That is what they’re paid for, and if they don’t offer information and advice, how can they earn their fee? Kline, in her talk, related a number of stories in which the advisor simply encouraged the client to keep talking and thinking through his decision until he came to resolution. Universally (at least in the stories she told us), the client valued the time with the professional more than if she had simply told him what she thought he should do, and was more likely to follow through on the decision he came to.In short, there are at least four (or three if you see counseling and collaborating as one and the same) approaches to how attorneys can work with clients. My conclusion is that all four can work better or worse depending on the situation and the decision that needs to be made. Does the client have the necessary technical information to make a decision? Are the choice and its implications relatively straightforward? Are the choices and the myriad outcomes complex, but the client’s goals very clear? Is this a decision based more on values than on achieving legal outcomes? Should the attorney probe the client’s values and goals more, for instance by asking how he would feel about various results that may occur? Which goals have priority?
Depending on the answers to these questions, the attorney can choose the most appropriate role or method of interaction to follow. The attorney may choose different approaches with different clients or with the same clients in various situations. The art of lawyering is to figure out the best approach at the right time for each client.
Related posts:
