Advisor Advises, Client Decides

Advisor Advises, Client Decides

Rule 2.1 asks a lawyer to do three things for a client: exercise independent professional judgment, render candid advice, and, where relevant, refer to moral, economic, social, and political considerations as well as law.¹ Each duty concerns what the lawyer contributes to a decision, and none hands the lawyer the decision. This section marks where the advisor's power stops. The lawyer informs, evaluates, and recommends; certain decisions, among them whether to accept a settlement and whether to appeal, stay with the client.

The line falls there because the client lives with the result. A settlement fixes what the client will receive or pay, and a decision not to appeal ends the client's chance to challenge a judgment. A lawyer who made those choices would carry into them the temptation discussed earlier in this chapter, a fee or some other interest of the lawyer's own, and no one would be positioned to check it. Candid advice does the matching work, because a client's authority over a decision is worth only as much as the information behind it.

The settlement footnote in Evans v. Jeff D. states the division most plainly. It begins from independence: a lawyer must not let his own interests, financial or otherwise, influence his professional advice. It then reports the argument that follows. Counsel must evaluate a settlement offer on the basis of the client's interest, without regard to his own interest in obtaining a fee, and upon recommending settlement he must “abide by the client's decision whether or not to accept the offer.”² The footnote cites Model Rule 1.2(a) for that last duty, and this chapter takes the rule only as the footnote cites it. Because the footnote reports an argument and does not decide the case, read it as a statement of the lawyer's professional position.

The lawyer in the footnote performs two acts in sequence, and each has its own job. The evaluation comes first and rests on the client's interest alone. That is the independence studied at the start of this chapter, applied to one concrete moment, so that the recommendation reaching the client carries no trace of an interest in the fee. The client's decision comes second and controls even when it rejects the recommendation. A lawyer who weighs an offer by the client's interest, recommends acceptance, and hears the client decline has done everything the advisor's role asks, and abides by the refusal. The recommendation is the lawyer's contribution, and it never becomes the lawyer's choice.

The same division governs the decision whether to appeal. A separate opinion in Roe v. Flores-Ortega quotes a standard for defense counsel after a conviction. Counsel should advise on the meaning of the judgment, the right to appeal, the possible grounds, and the probable outcome, but “the decision whether to appeal, like the decision whether to plead guilty, must be the defendant's own choice.”³ One sentence of the standard joins the duty to inform to the reservation of the choice. The opinion explains the link: counsel's evaluation must be communicated in a comprehensible manner so that the defendant's ultimate choice can be a meaningful one.⁴ The comparison to the guilty plea shows what kind of decision this is. In a settlement, in a plea, and in an appeal alike, the person who will live with the result is the person who chooses.

The comparison exposes the two mistakes students most often make here. Because the lawyer's judgment must be independent, students sometimes conclude that a sound lawyerly view should prevail over the client's. Independence, however, concerns whose interests shape the advice, and it gives the lawyer no authority over the outcome. In the other direction, “the client decides” is no license to take instructions in silence. Deciding whether to give a defendant any advice before the chance to appeal is lost is not a matter of “strategy,” and the lawyer owes that advice whatever the lawyer expects the client to choose.⁵ Settlement and appeal are the decisions these authorities name, and the appeal standard adds the guilty plea by comparison.