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A plaintiff launches a lawsuit with a very complicated set of facts and law. The client says, "I want you to focus on issues X, Y, and Z, because those are the ones that I am most comfortable and familiar with, and forget about, or at least downplay other issues. The law firm replies, "there are plenty of other issues here that could generate a higher award if we delve into them. The law firm then proceeds to do so, at the neglect of the client's three main concerns.

Does the lawyer have the right to do this? How closely must the law firm focus on issues X, Y, and Z if the fee arrangement is 1) "straight fee," versus 2) "mostly contingency"?

(I would guess that the lawyer would have a greater right to underweight the client's preference if the client provided mainly the "opportunity" and counsel is taking most of the financial risk via contingency. Whereas, if it were "straight fee," then the client would be paying the lawyer to "ventilate" issues X, Y, and Z in court.)

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    If they say "we're unable to do that", it could be different than if they were to agree to do it and then proceed to not do it. There's generally nothing wrong with the former (you can always hire another lawyer who would be willing to do it), but the latter sounds like malpractice. "There are plenty of other issues..." is neither agreeing nor disagreeing to do it, so if that's their response, it's probably up to the client to confirm what they will actually do (if it's important to them).
    – NotThatGuy
    Jun 25, 2020 at 9:59
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    If you explicitly tell a lawyer to not bring up some specific evidence or a specific argument (possibly due to the fact that it could damage your reputation or relationships, e.g. your mistress is your alibi), this might be different from generally trying to tell them how to do their job by telling what they should focus on instead.
    – NotThatGuy
    Jun 25, 2020 at 10:05
  • @NotThatGuy: You've made some good points so far.
    – Libra
    Jun 25, 2020 at 10:06

5 Answers 5

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Issues of strategy rest with counsel, not the client. Thus, in the situation you posit, the lawyer is not required to follow the client's desires.

One might observe, however, that a competent lawyer will avoid the conflict entirely by addressing the issue before accepting the client. If the client is firm in wanting to direct the lawyer's negotiation or litigation strategy, and the lawyer is unwilling to do so, the lawyer should decline to take on the case.

When I practiced, prospective clients who wanted to run things were very politely declined and shown the door. I don't see anything unethical about accepting such conditions from a prospective client, but the attorney isn't required to do so, and can decline the employment.

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  • Suppose the client says, I am interested in issues X, Y, and Z, because those are the ones that had the most footprint, the most evidence, the most available witnesses etc., on which we can win a case at relatively low costs. Put another way, the client says, "I'd rather spend $100,000 to probably win $500,000 than $1 million to maybe win $5 million.
    – Libra
    Jun 25, 2020 at 2:47
  • @Libra No thanks, not for me. Folks who have an emotional agenda that trumps a legal or fiscal one can look for another attorney. It wouldn't be unethical to accept the client and play by their rules, but an attorney is not required to do so. I'll add this to the answer. Jun 25, 2020 at 3:30
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    No, it's not "emotional" issues. It's "I'm on a budget, and can only pay for the low hanging fruit. Unless you're willing to go on contingency, I can't pay to go too far up the tree." Moreover, this is a case where if your reach too far up the tree, the legal costs will be larger than the likely recovery.
    – Libra
    Jun 25, 2020 at 10:05
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    @Libra You keep refining the circumstances, which changes the question, and, in turn, might change the answer. If a prospective client seems reasonable, and approaches the case in a rational matter, I would be receptive to working for them. The closer you cleave to that presentation, the more likely the attorney would accept the client's conditions. Jun 25, 2020 at 16:58
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A lawyer has a duty to exercise professional judgement

In some jurisdictions this is an ethical duty, in others it has the force of law.

For example, in rule 17 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 requires:

A solicitor representing a client in a matter that is before the court must not act as the mere mouthpiece of the client or of the instructing solicitor (if any) and must exercise the forensic judgments called for during the case independently, after the appropriate consideration of the client’s and the instructing solicitor’s instructions where applicable.

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The first thing a lawyer must do is:

act competently, in a timely way, and in accordance with instructions received and arrangements made

However, lawyers (like any professionals) don't like to be micro-managed. They prefer to take just your goals as instructions (versus your preferred ways of achieving them).

Where a lawyer fails to see that a new client will be trying to micro-manage them and realises that in the middle of the process, they basically have two options: give in or give up. Being stubborn will be just against the rules of conduct.

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Monitoring your lawyer's work is part of your job as a client.

You need to know what aspects of the case the lawyer is working on, and how much time is being spent on it. It's not unreasonable to ask to see daily bills.

Yes, you get to direct how the lawyer spends your money. If you don't want something pursued for a reason of yours, then you get to dictate that. For instance, some states sadly fail to protect the corpus of capital in IRAs and trusts from litigation. Which I find appalling, so I will tell my counsel to not target that corpus and that's my decision, on principle.

It's your money. You decide how it's spent.

However, if you choose to fund your lawyering via contingency, you're letting the brakes off the crazy train. You aren't the client... you're the product. The attorneys who depend on recovery for their paycheck are the functional clients. The crazy train goes where it wants to, and if that hurts people you care about or does things you find unfair or unethical, you have no one to blame but yourself.

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Does the lawyer have the right to do this?

Yes. Indeed, sometimes it would be malpractice for the lawyer to do otherwise. A lawyer has to exercise independent professional judgment.

The client controls the objectives of the litigation and the terms of any resolution of it, including a right to assess any settlement offer even if counsel recommends rejecting it. In criminal defense, there are also several other key decisions that are reserved for the client.

The authority reserved to the client is greater in the U.S. than in some other common law jurisdictions where counsel may settle a case without client approval.

The lawyer considers, but isn't bound to follow, client suggestions regarding how the litigation is conducted, and is bound by considerations not derived from the client, such as a professional ethics obligation to bring only meritorious claims. The lawyer also typically has multiple clients whose needs must be balanced.

For the most part, this relationship is not formally different in fee based and contingent litigation. Often a contingent fee agreement will call for a certain amount of cooperation and agreement between lawyer and client regarding settlement, however, and often a client has a de facto role in tactical decisions because the client often has to finance certain out of pocket costs even if the lawyer provides the lawyer's services on a contingent fee basis.

The most common relationship where the lawyer would generally accept more client input is when the lawyer is outside counsel for a firm, and the client representative is in house counsel for the firm who is an experienced and qualified lawyer in the same jurisdiction.

While not the most common reason for withdrawing from litigation, a client's desire to micro-manage how the lawyer conducts the case, which amounts to ignoring the advice of the lawyer that the client hired, is a not uncommon reason for a lawyer to withdraw from representing a client.

Nine times out of ten, when a client wants the lawyer to litigate in a manner that the lawyer thinks is a bad idea, the client either wants to take unethical action or is proposing something contrary to the client's own best interests, either out of ignorance or for emotional reasons. The other one time out of ten, the client has hired an incompetent lawyer who is at risk of committing malpractice. If the client is really convinced that this is the case, the client should seek a second opinion from an expert in that subfield of law in that jurisdiction, and if this confirms the client's fears, should hire new counsel.

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