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The attorney’s role in client decision-making

jeremy-rachlin-rev

Last week, an associate attorney in my office walked her estate-planning clients to the front door following their consultation and turned toward her office with an exhausted and somewhat bewildered look on her face.

“They wanted me to make all the decisions for them,” she explained when I asked her what had made the consultation so difficult.

As attorneys, one of the more challenging skills to acquire is understanding the client’s expectations for our role in their decision-making process and finding our own comfort zone in appropriately participating in client decision making. I try to explain to clients early in my representation that I view the most important role I can play for them as their adviser. I will identify all the possible methods to achieve their desired objective. For each method, I will identify the risks and rewards; or the costs and the benefits; and ultimately how likely I believe it to be, based upon my experience, that the method will offer substantial progress towards reaching the desired outcome. If I have clients whom I have worked with on many matters or for many years, my comfort level will be greater in taking on a more evaluative role in their decision-making because I understand that client’s tendencies and motivations better from my past work with them.

The example that I just gave lends itself well toward a civil litigation practice. But what about for my estate planning associate? She obviously can’t tell a client who to nominate to serve as personal representative or attorney-in-fact or (the role that gives most of our estate-planning clients the most heartburn) guardian over minor children. Rather, our associate highlights the responsibilities of the person nominated to a position should they to ever serve. Our associate also describes some of the personal characteristics of personal representatives and attorneys-in-fact and trustees that we have observed to be of greatest significance to their effective service. With that information in hand, we leave it to the client to decide who in their lives they should nominate to serve as a fiduciary, agent or
guardian.

For a business owner drafting an independent contractor agreement, the issues will be different. While certainly there are some provisions that we as the attorney will include just because there is really no good reason not to include the provision, there are plenty of other choices for the client to make. For example, do you include an ADR provision (and if so, what kind of ADR)? Do you include a mandatory insurance provision (and if so, what kind of policy limits)? And as you build more provisions into the agreement, are you running the risk of creating an employer-employee relationship instead of a true independent contractor agreement? We try to explain the provisions that we think the business owner may wish to consider including in the agreement and, for each provision, performing a risk/reward or cost/benefit analysis. War stories can sometimes be helpful in our discussion.

Paragraph 2 of the Preamble to the Maryland Rules of Professional Conduct explains succinctly: “As a representative of clients, a lawyer performs various functions. As adviser, a lawyer provides a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications….” Sometimes the challenge not only is learning how to offer this advice, but the challenge
may be explaining to the client that we are the “adviser” and not the ultimate decision-maker.

Readers, how do you best play the role of “adviser” in your practice? Each type of practice presents different challenges and opportunities to advise.

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