3

In another question, a commenter mentioned to me that attorneys 'are bad enough about giving concrete legal advice, let alone subjective legal advice.'

He was referring to my question of "is it wrong for an attorney to advise someone to do X because the fine for X is only $Y, and it is worth it to take the fine?"

I had supposed that attorneys don't like to offer subjective advice like that because it would be a violation of their license terms.

See my question here.

Why don't attorneys like to offer subjective legal advice?

  • As a lawyer, I offer subjective advice all the time. But, we do have to make sure that the ultimate decision is in the hands of the client. Advice is fine but decision making on the ultimate issues is not. – ohwilleke Nov 11 '16 at 5:06
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Most advice that a lawyer gives is subjective; facts are objective but opinions are always subjective. What a lawyer does when they advise a client is typically called a "legal opinion". The reason it is subjective is that, as Dale M said, there are numerous variants that go into an opinion, and reasonably trained professionals (attorneys) can disagree as to the outcome of a specific factual predicate. Often times, case outcomes will differ based on the application of the facts to the law, so much so that the case outcome can differ based on the choice of words a witness uses, or even the way a judge interprets the law.

This is why unlike truly objective discipline such as mathematics, where there is a right and wrong answer, no lawyer can ever say a case will definitely go one way or another. It will always be dependent on perception, which is the very definition of subjective. So, whoever indicated that lawyers don't give subjective advice was simply misinformed. They do. What they try not to do is make value-judgments, saying that things are good or bad; rather, they are trained to indicate whether something is illegal or not, or likely to get you sued or not. However, these are all legal opinions.

4

I think lawyers generally shy away from making value judgments on behalf of their clients because:

  1. attorney-client privilege is unilateral (i.e., only the client can assert it, not the attorney) and
  2. if a client really gets into trouble, he can always say "My lawyer told me to do it." (Taken out of context, of course.)

Attorneys want to avoid this because:

  1. They want to remain on the right side of the law and ethics;
  2. They invest a lot of time, money and effort to acquire their law license and
  3. They do not want to get sued or put their law license (often their most valuable asset) in jeopardy.
1

Lawyers don't want to give subjective legal advice for the same reasons that physicists do not want to give subjective statements on the nature of universe.

It is a surprise to many outsiders but the law is a highly rational process of reasoning from facts and laws to judgements. Change the facts and you change the judgement. Change the law (i.e. by considering alternative laws that might apply) and you change the judgement. Change the judge and you change the reasoning process and therefore the judgement.

In addition, lawyers are not accountants or engineers or marketers or priests; the scope of their professional advice is the law. In real life decisions, the law is only one input into the decision making process: there are financial, practical, reputational and moral dimensions which a lawyer can only have a personal opinion on; not a professional one.

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