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Ethical Considerations at the Beginning of a New Civil Matter

By Kristopher R. McClellan

 

Congratulations! You’re about to meet with a prospective new client about a civil matter he or she is facing. Alongside the practical and legal issues you will need to address, it is important to also remember your ethical obligations under the Rules of Professional Conduct and how they shape your representation of a client from the very beginning.

 

The Client’s Objectives

One of our primary goals as attorneys is to deliver the best possible results for our clients. Rule 1.2 states that an attorney “shall abide by a client’s decisions concerning the objectives of representation . . . and shall consult with the client as to the means by which they are to be pursued.” From the outset of your representation, this Rule requires that you understand your client’s objectives and the means available to your client to achieve those objectives. Legal matters in general and litigation in particular do not happen in a vacuum; depending on the issues and scope of the matter, a client’s relationships with his or her family, friends, neighbors, and business associates, as well as his or her financial standing, may all be at stake. You can only prepare an effective representation of your client if you understand where he or she is at the time you get involved, where he or she wants to end up, and what resources are available to bridge that gap. In other words, we need to listen to and understand our client’s needs and desires before we can determine how to deliver the best possible results in a given situation.

 

The Client’s Identity and Authority

 

If your client is anything other than an individual person paying for your representation directly, you will need to be clear about the client’s identity and authority, and you will also need to make clear the scope of your representation. For example, Rule 1.13(a) provides that a “lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.” That means that you will be dealing with individuals acting on behalf of the organizational client, and you must be especially aware of the tensions that may arise between the people with whom you interact and the entity that is your client. Rule 1.13(d) accordingly counsels that “a lawyer shall explain the identity of the client when it is apparent that the organization’s interests are adverse to those of the constituents with whom the lawyer is dealing.”

 

Your Ability to Effectively Represent the Client

Understanding your client’s objectives is only half of the puzzle; you must also know yourself. Rules 1.1 and 1.7 address competence and conflicts, two critical factors that point to the same question about you: Can you effectively represent a particular client and help him or her achieve the desired outcome in a particular matter?

 

Competence can be a worrisome hurdle for newer attorneys. You cannot control how smart or experienced your opposing counsel is, but you can and must control your own competence. Rule 1.1 requires that you employ the “legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” The good news is that Comment 2 recognizes that a “newly admitted lawyer can be as competent as a practitioner with long experience,” and that a “lawyer can provide adequate representation in a wholly novel field through necessary study” or “through the association of a lawyer of established competence in the field in question.” A new client can present an opportunity to build your competence (and confidence) in a new area of law and to create or strengthen your relationship with a more experienced mentor. It just depends how hard you are willing to work to effectively deliver the result your client expects.

 

Rule 1.7 requires that your efforts to achieve your client’s objectives not be compromised by your own interests and your representation of other clients. Your client trusts that you will use your unique skills and knowledge of the law on his or her behalf, and Comment 1 of this Rule states that “[l]oyalty and independent judgment are essential elements in the lawyer’s relationship to a client.” You can only deliver the most for your client if you remove your conflicts of interest as potential obstacles to your effective representation. Rule 1.7(b) does provide for you to represent a client “[n]otwithstanding the existence of a concurrent conflict of interest” under Rule 1.7(a), provided that certain conditions are satisfied, including written consent of the affected clients, and that you as the attorney “reasonably believe[] that the lawyer will be able to provide competent and diligent representation to each affected client.”

 

Communicating With Your Client

As important as it is to understand your client’s objectives and available means at the beginning of your representation in order to prepare an effective strategy to deliver the client’s desired outcome, Rule 1.4 makes clear that it is equally important, if not more so, to communicate throughout your representation so you and your client can adapt your strategy to changing conditions. It is helpful to address communication during your initial client meeting so you can establish, for example, how you can reach your client to have him or her review draft pleadings, provide information, consider alternative-dispute-resolution processes, or respond to his or her questions. Believe it or not, there are people today without cell phones and e-mail, and some of them may become your clients! Regardless of the particular circumstances, plan ahead and establish clear expectations for communication with your client from the start.

 

The Practical Side of Ethics

Although this is not an exhaustive explanation of your ethical considerations, the Rules discussed here demonstrate that your ethical obligations should not be an afterthought when you represent a new client. Instead, they provide a practical framework to guide you through critical decisions, such as how to understand and achieve your client’s objectives, how to communicate with your client as means and objectives evolve, and whether you should even represent a client in the first place. Remember that the Virginia State Bar’s Legal Ethics Hotline is available to help you address any questions concerning the Rules, so please do not hesitate to take advantage of their knowledge and assistance.

 

Kristopher R. McClellan is an attorney with Lawson and Silek, PLC. He can be reached at kristopher.mcclellan@gmail.com.