Everyone has probably heard the expression “the customer is always right” at one point of another. In essence, the saying means that people selling goods or services should assume that the customer is always correct and do everything in their power to please their customers. Although there are many attorneys who apply this expression to legal services, it is often true that the client is not always right. Most clients are not lawyers, and they may not have enough experience to make informed decisions about legal matters. As a result, clients can realize a number of benefits if lawyers do not assume that the client is always right and attorneys have the freedom to tell their clients that they are incorrect about an issue or strategy.
It is easy to understand why attorneys would take the position that the client is always right, and follow the wishes of their clients without protest. The marketplace for legal services is extremely competitive, and attorneys are constantly fighting to find and retain clients. No one likes being told that they are wrong, even if they don’t have expertise in a given field. As a result, attorneys may not want to “rock the boat” with clients for fear that their clients will jump ship and search for another law firm.
I have seen attorneys at many of the firms at which I worked pursue misguided strategies because it fulfilled the wishes of clients. Indeed, I have worked at firms in which attorneys focused on arguments that had almost no chance of success just because a client told them to make certain points. In addition, I have seen attorneys file unnecessary motions or complete other unneeded tasks just because a client told them to follow a certain strategy. Of course, if a tactic will not materially impact a client’s position, or put an attorney in ethical jeopardy, there is usually no problem with following a client’s advice.
However, most clients are not attorneys, and as such, they likely do not have much familiarity with legal issues. In addition, even if clients are lawyers, they might not have experience with the legal issues that are at the heart of a matter. Moreover, in-house attorneys who work for corporate clients might have bureaucratic or other reasons for recommending a certain strategy, even if it might impact a client’s likelihood of success.
Attorneys do their clients a huge disservice if they blindly acquiesce to the proposed tactics of a client without providing clients the benefit of the attorney’s experience. Of course, ethics rules provide that a client has the exclusive right to decide on objectives of a given representation, and the goals of legal services should be decided by clients alone after consultation with a lawyer. However, ethics rules usually leave the strategies used to pursue those objectives in the hands of the attorney, so long as lawyers consult their clients about proposed strategies. As a result, attorneys should feel empowered to confront their clients when their clients favor strategies that the attorney thinks are flawed.
Over the course of my career, I have confronted clients on several occasions when I felt my clients were misguided about proposed strategies. Of course, as the proprietor of a new law firm, I want to make my clients as happy as possible. However, this is not at the expense of doing everything that I can to ensure that my clients have the best chance at achieving their objectives.
For instance, earlier in my career, I had a client who was adamant about not giving our adversary additional time to file their answer. The client had an extremely bad relationship with our adversary, and the client did not want to do the adversary any favors. In addition, the client did not trust our adversary, and thought that he would just delay the proceedings as long as possible in order to make it harder for us to reach a resolution.
I told my client that it would look bad if we didn’t give our adversary additional time to answer the complaint, and that if we ever needed an extension of our own, we might not be able to receive it if we pursued this strategy. In addition, if we tried to settle the case before the case went into discovery, our adversary would be more willing to resolve the matter if they did not need to spend money on legal fees by filing an answer or a motion to dismiss. Furthermore, I told my client that I did not want to practice law by refusing to extend courtesies, and that we would lose almost nothing by allowing our adversary a few more weeks to file an answer. We ended up resolving the case on positive terms before an answer was filed, and even though I created some friction with my client, the client ended up benefiting from having a frank conversation about the pitfalls of the client’s strategy.
In the end, the legal industry is similar to a number of other fields. and lawyers oftentimes need to compete against each other for business. As a result, many lawyers follow the strategies proposed by clients without discussing their own opinions. Nevertheless, attorneys do clients a huge disservice if they do not confront their clients about flaws in how clients wish to proceed in a given legal matter.
Jordan Rothman is the Managing Attorney of The Rothman Law Firm, a New Jersey and New York litigation boutique. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jrothman@rothmanlawyer.com.