Adjunct Professor Joel Cohen wrote an op-ed in the New York Law Journal about the analytical skills that lawyers need to advise their clients.
An attorney is also an advisor, who “shall exercise independent professional judgment and render candid advice” and express an “honest assessment” of the matter. NY Rule of Professional Conduct 2.1 and c. 1; ABA Model Rule of Professional Conduct 2.1. But should—can—lawyers offer moral advice? Prof. Monroe Freedman argues that lawyers are accountable and “should counsel the client regarding moral aspects of the representation.” Yet, once a lawyer undertakes the representation, “it would be immoral as well as unprofessional for the lawyer … to deprive the client of lawful rights that the client elects to pursue after appropriate counseling.” Monroe Freedman, Abbe Smith, Understanding Lawyers’ Ethics, 4th Ed. §4.04.
The Rules indeed permit a lawyer to let the client know his own moral views of the matter. The lawyer “may refer not only to law but to other considerations such as moral, economic, social, psychological and political factors … .” To go further, because advice couched in legalese may be of little value, it “is proper for a lawyer to refer to relevant moral and ethical considerations,” particularly as they may influence how the law will be applied. NY and ABA Rule 2.1, c. 2.
A lawyer has an unambiguous duty to tell the client, in no uncertain terms, the risks inherent in a potential course of action. NY and ABA Rule 1.4. But—as we all know—there are ways to tell, and ways to tell. How a lawyer chooses to implement his status as the client’s fiduciary, or even call it consiglieri in the finest sense of the word, may be idiosyncratic to the lawyer or the client, and the relationship that might exist between them.
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[M]ost lawyers will never face the weighty (perhaps “ethical”) challenge presented to the lawyers in the Pentagon Papers case—who maybe might later be called upon to defend the very conduct on which they gave advice that might ultimately be considered by the courts as “contemptuous” or even criminal. For a lawyer being asked by the client: “Can I [legally]do this?”—the easiest and most self-protective thing to do might well be to say “no.” This is especially so if the lawyer has serious hesitations and fears that one day (assuming he said “yes”), the client will publicly maintain, maybe even in court, that “I relied on my lawyer’s advice.” But lawyers are duty bound to explain a matter.
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No question, in his “zealous representation” of a client, a lawyer cannot counsel a direction unfaithful to his actual legal analysis of the issue, even if that means the lawyer may one day have to defend that advice because of the potential negative reputational fallout. In a perfect scenario, a lawyer should be able to dispassionately lay out the legal, moral and political pros, cons and everything in between and tell his client to decide.
But that is not the real world. So when a lawyer is called upon to say “yay” or “nay,” he needs to dig deep into his basket of analytical skills and legal acumen to ensure that he gives the client the full range of potential upsides and downsides. But I mean—the full range!