It’s hard to say that a defendant has a “worst” enemy, since there are so many to chose from. But at least we are well-equipped to deal with most of them, ranging from cops to witnesses to prosecutors to judges. There’s one, however, that presents an entirely different sent of problems. The defendant himself.
What do you do when the defendant is his own worst enemy? As a practical matter, we try to make, or keep, our clients happy. Happy clients are cooperative clients. They make our lives easier, our work more pleasant. They like us better, and pay our fees. They speak well of us and refer us to other clients. Happy clients are good clients. But…
There are certain aspects of a defense that require a client to either perform a task, or forgo a task, in order to pursue a viable strategy. We instruct them on what to do or not do, and the instructions are generally not terribly difficult to follow. Yet clients often find it impossible to do so. The problem then shifts back to the lawyer. How do you deal with the client who is destroying himself?
It goes without saying that the lawyer is responsible for the successful execution of all tactical decisions necessary to achieve the agreed-upon strategy. When the prosecutor tries to get in the way, it’s the lawyer’s job to find a way over, under or around him. But when it’s your own client who keeps creating roadblocks, the situation grows hairier. It’s no longer an issue of tactics, but one of ethics.
This is one of the many points where a lawyer differs from a businessperson. From a business perspective, the client is always right. We want to keep our clients perpetually smiling. But we give up the long term happiness, prevailing in the case, for the short term happiness of telling the client that his latest act of destruction, undermining his own defense, is “okay, no problem, we’ll deal with it.” The fact is that many of the things that a defendant can do to harm his cause cannot be fixed. And they can be devastating.
This is one of those points where lawyers must decide what they really are, a lawyer or a businessperson. The lawyer’s duty is to do what is in the best interest of his client, regardless of whether it pleases the client. This can be a difficult matter to handle, and produce a very unhappy client. No client wants to be told the harsh truth that his actions, the ones he does in contravention of instructions, or the brilliant ideas to help himself that he comes up with all on his own, are going to put him in prison.
When the client resists, it can become a battle for control. The lawyer, recognizing that it’s the client’s life and if he choses to ruin it, then he will pay the consequences, may well feel justified in throwing up his hands and letting the client destroy his defense. After all, it is his life, right?
But the most critical reason a client retains counsel is to exercise the degree of professional discretion necessary to protect the client from bad and destructive choices. The client may be well intended, but that’s not going to save him from conviction. This is when we are truly tested; Will we put the client’s interest first?
The ethical duty of a lawyer is to seize control of the situation, to assert his authority to defend his client and to do everything in his power to prevent the client from taking actions that are antithetical to his defense, no matter how painful this may be. As I’ve told clients over the years who bristle and resist ceding control over their lives for a brief period of time to a lawyer, the choice is to have a nice lawyer now and lose, or a tough lawyer now and maximize your chance to win.
Nobody ever said this was an easy job, or that we can ethically perform our duty while keeping everybody happy. But when push comes to shove, and the choice is between fulfilling your true responsibility to your client even when it requires you to take a stand that will not make him love you and keep the client happy, the choice is clear if you’re a lawyer rather than a businessperson.
It is our job to protect our client from his worst enemy, even when the enemy is him,
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I think I will respectfully disagree with you here, Scott, at least a little bit.
Most of the people I know who work in professional services or any kind of consultative role, at least if they are ethical and bring integrity to their professions, despair about trying to save their clients from…their clients. I don’t think this problem is limited to the practice of law.
Of course, the consequences of mishandling an ornery client clearly have the potential to be much more drastic and damaging in law than in most other professions.
However, on the positive side, I find there’s a productive, professional discussion in business books and in non-law business blogs, again particularly with professional service firms, about how to save the client from his- or herself.
So the good news is, you’re not alone, and you don’t have to reinvent the wheel. There are some good minds outside your profession who are grappling with this problem, too, and may bring a fresh perspective to it.
Hey Shaula, you’re allowed to disagree with me, even if just a little bit. The reason for this post is that some lawyers, perhaps most, will shy away from their duty to protect their client when it is the client himself who acts in a way detrimental to his cause. The client need not be “ornery”, and in most cases isn’t ornery at all. Just harmful to himself.
From a business perspective, this would be the equivalent of refusing to sell a product to a customer who insists that he wants it because the product was the wrong one for him. For a business person, this isn’t an ethical issue. If the customer wants it, and you sell it, it’s none of your business whether you think the customer is making the wrong choice. Indeed, one would say that you have no business sticking your nose into the customer’s affairs that deeply, and your higher business purpose is to simply satisfy the customer.
Law is different. We have a higher purpose than merely being agreeable. Most of us, like a good salesman, would prefer to have a happy client and to act in a way that will engender the client’s short term satisfaction with us. We feel good. The client feels good. But the client loses as a result.
I think business neither does, nor should, operate this way. But for lawyers, our ethical obligation is very different from just keeping the customer happy. Business ethics have no similarity to this whatsoever. Aside from the fact that there are no business ethics in the way of legal ethics, which are a written set of mandatory rules (in NY, the Code of Professional Responsibility) enforceable by the court rather than some wiggly lines of reason that businesses may or may not apply, whatever duties of honesty and integrity business may chose to apply are substantially different than the lawyer’s duty to zealously represent his client.
When a lawyer allows his client to do harm to himself, and by so doing harm his cause, he has failed to fulfill his duty to zealously represent his client. There is no comparable duty in any other profession or business, and it’s a choice that most lawyers would prefer not to make. While businesses discuss dealing with the unhappy customer all the time, this is not the same issue at all, though any confusion about the subject I’m discussing would be my fault for being unclear. This is about preventing a client from causing harm to his legal cause.
As I said, we would all prefer to make our clients happy rather than deal with the harm he is doing to himself. But for a lawyer, protection of our client must come first.