Advisor, evaluator, negotiator - Lawyer as advisor

Learning Outcomes

After reading this article, you will be able to explain the lawyer’s role as advisor, including the duty to provide candid advice, the inclusion of nonlegal factors, and when to offer unsolicited guidance. You will be able to identify when a lawyer must inform a client of risks, and apply these principles to MPRE-style questions.

MPRE Syllabus

For the MPRE, you are required to understand the ethical responsibilities of a lawyer acting as an advisor. This includes:

• Recognizing the duty to provide candid, independent advice to clients.
• Identifying when a lawyer may or must address nonlegal considerations, such as moral, economic, or social factors.
• Distinguishing between legal advice and business or personal advice.
• Knowing when a lawyer should offer advice without a client’s request.
• Applying these principles to fact patterns involving the lawyer’s advisory role.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following best describes a lawyer’s duty when acting as an advisor?
   1. Only provide technical legal advice when asked.
   2. Offer candid advice, including nonlegal considerations, when appropriate.
   3. Limit advice to the strict letter of the law.
   4. Only answer direct legal questions from the client.
2. A lawyer learns that a client’s proposed business deal is legal but likely to harm the client’s reputation. What should the lawyer do?
   1. Say nothing unless asked.
   2. Advise only on the legal risks.
   3. Offer candid advice, including reputational risks.
   4. Decline to advise on nonlegal matters.
3. When is a lawyer required to offer advice without a client’s request?
   1. Never.
   2. Only when the client is inexperienced.
   3. When the client’s proposed action may have serious adverse consequences.
   4. Only if the client asks for moral guidance.

Introduction

A lawyer’s role extends beyond providing technical legal answers. As an advisor, a lawyer must exercise independent professional judgment and give candid advice tailored to the client’s situation. This includes not only legal analysis but also consideration of moral, economic, and social factors that may affect the client’s interests.

Key Term: Lawyer as Advisor
The function of a lawyer in providing clients with candid, independent advice, including legal and relevant nonlegal considerations, to help clients make informed decisions.

The Duty to Provide Candid Advice

Lawyers must give honest, straightforward advice, even if the advice is not what the client wants to hear. This duty is not limited to legal risks but includes practical realities and potential consequences.

Key Term: Candid Advice
Advice that is honest, complete, and not misleading, addressing both legal and relevant nonlegal factors affecting the client.

Considering Nonlegal Factors

A lawyer may, and often should, address nonlegal issues relevant to the client’s objectives. This can include business strategy, reputation, public relations, or personal values. The lawyer’s advice should help the client understand the full context of their decisions.

Key Term: Nonlegal Considerations
Factors outside of strict legal analysis—such as moral, economic, or social implications—that a lawyer may address when advising a client.

When to Offer Unsolicited Advice

While clients usually initiate requests for advice, a lawyer should not wait if the client’s proposed course of action may have serious legal or nonlegal consequences. If the client appears to be making a significant decision without understanding the risks, the lawyer may have a duty to speak up.

Key Term: Unsolicited Advice
Guidance provided by a lawyer without a specific client request, when necessary to protect the client’s interests.

Scope and Limits of the Advisor Role

Lawyers must clarify when they are not providing legal advice, especially if the client might misunderstand the lawyer’s role. If a client seeks advice on matters outside the lawyer’s specialization, the lawyer should explain the limits of their advice and may recommend consulting other professionals.

Worked Example 1.1

A client asks her lawyer whether to settle a lawsuit or proceed to trial. The lawyer believes the settlement is legally sound but knows the client’s business reputation could suffer from publicity if the case goes to trial.

Should the lawyer discuss reputational risks with the client?

Answer:
Yes. The lawyer should provide candid advice, including legal and nonlegal considerations such as reputational harm, to help the client make an informed decision.

Worked Example 1.2

A client proposes a business venture that is technically legal but may be viewed as unethical by the public. The client does not ask about public perception.

Is the lawyer required to address the ethical concerns?

Answer:
Yes. If the lawyer knows the client’s plan may result in serious adverse consequences, including public backlash, the lawyer should offer unsolicited advice about these risks.

Exam Warning

On the MPRE, do not assume a lawyer’s duty ends with legal analysis. If a question involves potential nonlegal risks or moral issues, the best answer often requires the lawyer to address these factors candidly.

Revision Tip

When revising, practice identifying when a lawyer should go beyond legal advice and discuss practical, moral, or reputational risks. Look for cues in MPRE questions about the client’s objectives or possible adverse outcomes.

Summary

A lawyer acting as advisor must provide candid, independent advice that addresses both legal and relevant nonlegal considerations. This duty includes offering unsolicited advice when the client’s actions may have serious consequences. The lawyer should clarify the scope of advice and recommend other professionals when appropriate.

Key Point Checklist

This article has covered the following key knowledge points:

• Lawyers must provide candid, independent advice tailored to the client’s situation.
• Advice should include legal and relevant nonlegal considerations.
• Lawyers may need to offer unsolicited advice if the client’s actions carry serious risks.
• The advisory role requires honesty, even if the advice is unwelcome.
• Lawyers should clarify the limits of their advice and recommend other professionals as needed.

Key Terms and Concepts

• Lawyer as Advisor
• Candid Advice
• Nonlegal Considerations
• Unsolicited Advice