Being an advocate vs. being a counselor

Evan Koslow

Evan Koslow

As an attorney, you have the responsibility to both advocate for your client and be their counselor. Sometimes, though, those two roles are not in sync. So the question becomes: How do you properly handle your role as the attorney for that client when the roles do not align?

We all have been there where, in public, we advocate tooth and nail for our clients’ position zealously, but behind closed doors, when speaking to the client, we counsel them about their position, advising them of the likelihood of success, and the pros and cons of all of their options so that they can make the best possible decision (even if you disagree with that decision).

The way I handle these situations is, I tell my clients to think of me as the navigator and you as the captain. I am going to give you all the different routes and options you can choose to take, advise you which route I believe is best for you and your family. (As a family law attorney, I believe when counseling my clients I don’t just think about what could happen in court but I also look at the family as a whole and what can possibly be the best outcome for the new life this family is about to begin.) I tell my clients that, at the end of the day, you are the captain, and you make the decision. I will go the route you want me to go (as long as it ethical and moral), even if I do not agree with your decision. (I also advise them that no one will know if I don’t agree.)

Most of the time, this discussion helps clients see the bigger picture, and more often than not cases end up settling. However, there are times that your client (or the other side) just wants their day in court. When it is my client who wants their day in court, I remind them the only people who win in court are the attorneys. The attorneys get paid (hopefully you have enough money in your retainer in case you “lose” and don’t get paid) and go home to their families at night. The judge makes a decision and is on to the next case, having no idea how the decision may ultimately affect the parties (their family and friends, too).

It is the client (and opposing party) that has to live with the ultimate decision, and I’m sorry, no person in a black robe should be making a life-changing decision (I am talking about family law cases, obviously), as a judge will never get the entire picture due to the court’s time constraints and the rules of evidence.

How do you handle it?

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