Legal Ethics Corner

Ethics Corner is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association for SDCBA members.


Should a Lawyer Advise a Client to Consider Moral and Other Considerations with Respect to the Subject of Representation?
 
Now that I have asked the hot button question, I am stepping back from it…sort of. The ABA Model Rules of Professional Conduct provide:
 
In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation. (Rule 2.1 Advisor/Counselor.)
 
(California has not adopted the ABA Model Rules, although they may serve as guidelines absent California authority on-point or in the absence of a conflicting state public policy. (City and County of San Francisco v. Cobra Solutions, Inc. (2006) 38 Cal.4th 839, 852.)) In light of the “may refer” in the above passage, there is little doubt that advising on moral and other considerations, i.e., those that do not work into the legal analysis, is discretionary. 
 
Comment [2] to this rule adds:
 
Advice couched in narrow legal terms may be of little value to a client, especially where practical considerations, such as cost or effects on other people, are predominant. Purely technical legal advice, therefore, can sometimes be inadequate. It is proper for a lawyer to refer to relevant moral and ethical considerations in giving advice. Although a lawyer is not a moral advisor as such, moral and ethical considerations impinge upon most legal questions and may decisively influence how the law will be applied. (Emphasis added.)
 
To be sure, it is not for the lawyer to somehow impose his/her moral or other point of view on the client, and no lawyer should allow personal views to bias his/her advice.  Naturally, “A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.” (ABA Rule 1.2, Scope of Representation and Allocation of Authority Between Client and Lawyer, subd. (b).) Notwithstanding, if such bias is at play, then the lawyer should certainly inform the client of his/her moral or other reservations regarding the matter so that the client can decide whether to retain other counsel. Indeed, in such circumstances, it might be best for both lawyer and client to terminate the relationship so that the lawyer is not carrying some personal reservation thoughout the representation and so that the client is not left wondering whether she is actually receiving objective and competent advice. Subject to certain exceptions, such as that involving criminal/fraudulent conduct, “a lawyer shall abide by a client's decisions concerning the objectives of representation….” (ABA Rule 1.2(a); emphasis added.)  It is the client who decides what to achieve, so long as supported by a good faith argument under governing law. 
 
Many, if perhaps not most legal matters might not call for consideration of overtly moral, political, or other factors. However, most attorneys at some point will likely encounter a situation where to take a certain step, even if legally justified, might seem morally questionable. For example, client in a civil matter has admitted to counsel that client knowingly defrauded the plaintiff. Plaintiff discovered the fraud sufficiently back in time that the statute of limitations will bar the claim. Should counsel, in addition to noting the likely successful invocation of the statute, also advise, “in light of the fraud you committed, you should at least consider compensating the plaintiff”? An attorney is not “a moral advisor as such” (Rule 2.1, Comment [2]), but should she/he function strictly as a legal technician and couch advice so narrowly as to write off moral considerations altogether? 
 
--Luis E. Ventura
 
**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**