When Advice Is Required

When Advice Is Required

Rule 2.1 tells a lawyer how to advise: the lawyer must "exercise independent professional judgment and render candid advice," and may draw on moral, economic, social, and political considerations as well as law.¹ It does not say when. Whether a lawyer must raise a subject the client never mentioned, or may wait to be asked, comes up constantly in practice, and the text of the rule leaves it open.

The answer begins with a default and then makes two exceptions. A lawyer ordinarily answers the questions the client asks and need not search for problems the client has not mentioned. The default gives way in two situations in which silence would cost the client too much. In the first, the lawyer knows the client proposes a course of action likely to produce substantial adverse legal consequences. In the second, a matter is likely to end in litigation and some alternative to a lawsuit might serve the client better. In both, the duty to speak unasked comes from the lawyer's duty under Rule 1.4 to communicate with the client, and Rule 2.1 then sets the standard the advice must meet. An answer that rests the duty to volunteer on Rule 2.1 alone omits the rule that does the requiring.

The rules take this shape because advice has costs on both sides. A lawyer required to volunteer opinions on every topic that might touch the client's affairs would burden each engagement with unrequested commentary and would intrude on the client's choice about what to ask and what to leave alone. A lawyer who never spoke without a question would let a client walk into harm that one sentence could have prevented, because clients cannot ask about risks they cannot see. Requiring unprompted advice only where the stakes are high and the lawyer knows of the risk balances the two. The lawyer answers what is asked in the ordinary case and speaks first when silence would fail the client. The first subsection below sets out the baseline of advice on request, and the next two take up the situations in which the lawyer must speak first.

Advice on Request

Rule 2.1 describes the quality of advice, not its occasion. A lawyer representing a client must exercise independent professional judgment and render candid advice, and may refer to moral, economic, social, and political considerations as well as law.² Those duties attach to advice the lawyer is giving, and nothing in the text tells the lawyer to go looking for subjects the client has not raised. A default fills the gap. A lawyer generally need not give advice until the client asks, and has no duty to investigate the client's activities to find out whether advice is needed. The lawyer remains free to inquire further, or to raise a matter unprompted, whenever that would serve the client. The default sets a floor and leaves the lawyer's discretion to do more intact.

The reason lies in how an engagement is defined. A client retains a lawyer for a particular task, such as reviewing a lease, drafting a will, or defending a suit, and the client both frames and pays for that task. A duty to investigate would turn every narrow engagement into an audit of the client's life, with the lawyer questioning the client about unrelated ventures, family arrangements, and finances the client never placed in the lawyer's hands. That would raise the cost of every retention and override the client's choice about how much of the client's affairs to open to legal review. Fairness points the same way. A lawyer cannot be faulted for silence about a risk the lawyer had no reason to know existed, and a duty built on discovery would make the lawyer answerable for every problem a thorough inquiry might have turned up. Leaving the lawyer free but not obliged to look further protects the client's control over the scope of the work and still lets the lawyer help when a problem comes into view.

The lawyer's knowledge separates the two clients; the lawyer's effort was the same in both. The default relieves a lawyer of any duty to dig, and it says nothing to a lawyer who has already been told. Students often read the absence of a duty to investigate as an absence of any duty to speak once the lawyer is informed, which merges two questions the rules keep apart. The next subsection takes up what a lawyer who knows of such a plan must do.

Volunteering Advice on Serious Consequences

Rule 2.1 directs a lawyer to "render candid advice," but its text does not say whether that duty reaches a subject the client never raised.⁴ The comment to the rule answers for one important class of cases: when a lawyer knows that a client proposes a course of action likely to result in substantial adverse legal consequences to the client, the lawyer's duty to the client may require that the lawyer offer advice.⁵ That exception cuts into the default described above, under which a lawyer need not advise until asked and need not investigate the client's affairs. It has three working parts. The lawyer must actually know of the proposed course, so information the lawyer holds triggers the exception, and nothing digging might have uncovered does. The course must be likely to produce substantial adverse legal consequences, which screens out remote or minor risks. And the consequences must fall on the client, because the duty exists to protect the person being advised. The word may makes the duty depend on circumstances such as how grave and how foreseeable the harm is.

The reason for the exception follows from what the client can and cannot see. A client can ask only about risks the client knows exist, and the client in the most danger is often the one who does not realize a plan carries a legal penalty. The lawyer is usually the only person in the relationship who knows the consequence and the only one positioned to explain it while explanation can still change what happens. A sentence of advice costs the lawyer almost nothing, while silence can cost the client a visa, a business, or a right. That imbalance explains why the default of waiting to be asked gives way here.

The F-1 student shows the exception at work. A student in F-1 status who proposes to accept employment that violates the conditions of the visa risks loss of the visa and removal, and the student may not have understood those stakes in deciding to take the job.⁶ A lawyer who knows of the plan owes the student a plain account of what unauthorized work can cost, whether or not the student asked. Timing sets the strength of the obligation. A lawyer who learns of the plan before the work begins is in the strongest position, because correct advice can still prevent the harm. A lawyer who learns afterward finds that loss of visa, removal, and ineligibility to adjust status have already become applicable, so the duty to act is less demanding, though the lawyer should still advise the student against continued employment.⁷ The difference lies in what advice can accomplish: before the act it prevents the loss, and after the act it can only limit it. An exam stem in which the lawyer discovers the job only after it began tests whether you notice that difference and avoid concluding that the duty has vanished.

The lawyer's knowledge is the only variable that moved in that scene, which is why the exception does not grow into a duty to monitor clients. A lawyer who never learned of the plan was under no obligation to ask about it, and a lawyer who knew only of a trivial legal risk would find the threshold of substantial consequences unmet. A student who writes that the lawyer had no duty because the client never asked has applied the default to a case the exception governs. A student who writes that the lawyer must watch the client's activities for trouble has stretched the exception into the duty to investigate that the default rejects.

The same principle appears in criminal defense, where the harm is the silent loss of a right and the client often proposes nothing at all. A separate opinion in Roe v. Flores-Ortega collected the professional norms that govern defense counsel after a conviction, and it matters here for the norms it describes and not for the case's holding.⁸ The ABA Model Code says trial counsel for a convicted defendant should continue to represent the client by advising whether to take an appeal, and the defense standards add that counsel should advise the defendant on the meaning of the court's judgment, the right to appeal, the possible grounds for appeal, and the probable outcome of appealing.⁹ The comment to Model Rule 1.3, quoted in the same opinion, covers the client who has said nothing: a lawyer who has handled a proceeding with an adverse result, and has not been specifically instructed about an appeal, should advise the client of the possibility of appeal before relinquishing responsibility for the matter.¹⁰ The Restatement of the law governing lawyers embodies the same standard by requiring a lawyer to notify the client of decisions the client must make and to explain a matter well enough for the client to decide with information.¹¹

The opinion adds that California has apparently eliminated any option on a lawyer's part to fail to give advice on the appeal decision, whether the failure is negligent or intentional.¹² Silence gains the client nothing, and the defendant loses an option without knowing it existed. Informing the defendant does not take the choice away, because the same standards say that "the decision whether to appeal, like the decision whether to plead guilty, must be the defendant's own choice."¹³ The lawyer who volunteers advice about appeal evaluates and recommends, and the client decides, a division of authority taken up later in this chapter.

Set beside the F-1 example, the appeal situation changes what triggers the duty. The student proposes an affirmative step that carries a legal penalty, while the convicted defendant proposes nothing and the harm is an opportunity that lapses through inaction. In both, the client lacks information the lawyer holds, and the window for useful advice is closing. The appeal standards speak in firmer terms than the comment's conditional may, which is understandable where the cost of silence, a lost appeal, does not vary.

Advising on Alternatives to Litigation

Rule 2.1 commands a lawyer to "render candid advice" and allows the lawyer to bring in economic and practical considerations beyond the law, and one subject on which that candor matters is the choice of how a dispute will be resolved.¹⁵ The comment to the rule ties the point to the lawyer's duty under Rule 1.4 to keep the client reasonably informed. When a matter is likely to involve litigation, the lawyer may need to tell the client about forms of dispute resolution, such as mediation or arbitration, that could be reasonable alternatives to a lawsuit. The rule's text never mentions the subject, so the obligation to raise it comes from the duty to communicate, and Rule 2.1 sets the standard the advice must meet once it is given.

The duty exists because a client usually arrives with one path in mind. A person who wants a dispute resolved often assumes the answer is a lawsuit, because a lawsuit is the only process the client has seen. Litigation is costly, slow, and uncertain, and the client may not know that a mediator or an arbitrator could produce a result at lower expense and on a faster schedule. The lawyer is the one person in the relationship who knows the full menu of options. If the lawyer never describes the others, the client commits to a course that may serve the client's goals worse, and the only cause is that no one explained the alternatives. This is the same imbalance of information that justified volunteering advice about serious legal consequences, though the trigger differs: the lawyer need not know of any dangerous plan, only that the dispute is likely to end up in court.

The likelihood of litigation is the hinge between the two scenes, and the lawyer's effort or diligence plays no part in it. A routine transaction that is unlikely ever to produce a lawsuit gives the lawyer no reason to discuss dispute resolution. A dispute headed for court gives the lawyer every reason, because the client is about to take on expense and delay that a cheaper process might avoid.

The duty is to discuss alternatives, and it does not reach the choice among them. The lawyer informs the client and evaluates the options candidly, and the client decides which route to take, a division of authority developed later in this chapter. The conversation also tests the independence studied earlier. A lawyer who bills by the hour earns more from a long lawsuit than from a quick mediation, and Rule 2.1 requires the advice to come from judgment exercised for the client and not from the lawyer's own stake.¹⁶ Exam answers go wrong in two directions: some read the duty as a command to recommend arbitration or mediation, and others read it as a duty to raise the subject in every engagement.