“The interaction between a lawyer and their client, which moulds the provision of legal advice and representation, should respect democratic ideals and the different forms of knowledge each possesses.”

I. Introduction:

Client is the most important individual in the judicial system. Without his presence, one can not expect the emergence of the Lawyer, the Court, the Judge, and the Law & Justice Minister etc. The client is the ‘raw material’ and all other functionaries are the consequential ‘finished products.’

The whole process of judicial intervention is set in motion by the interaction between a lawyer and the client. The interaction and the conclusions arrived at, is termed as legal advice possibly leading to representation. It sets the legal and judicial wheels moving. The trust between the lawyer and the client is the foundation stone of the case. Their confidence need to remain in tact, from the beginning to the end. As for the implications and complications involved in the referral, the lawyer is the final authority, because he possesses the legal knowledge and skills.

But the client has more ‘practical knowledge’ because he is the aggrieved party. A client speaks through the heart, and it is for the lawyer to find out the legal grounds to remove his grievances within the existing framework of law. A lawyer has a great responsibility towards the facts tendered by the client and his feelings. At the same time the client, howsoever strong may the impact of the injustice as perceived by him- he must listen to the lawyer for the legal merit of the case. In short, “the interaction between a lawyer and the client, which moulds the provision of legal advice and representation, should respect democratic ideals and the different forms of knowledge each possesses.”

II. Background:

The vast research on the subject projects a unanimous conclusion. No simple answer can be tendered as to who controls the lawyer-client relationship. Every argument has a counter argument. That is true as for this issue. Take for the example representation for personal injuries on a contingency-fee basis. This often is the conflict-prone area. Combinations of two elements work in this context. Foremost is the financial calculations devolved in handling the case on percentage basis (American contingency fees are calculated thus).

Time-budget of the lawyer is another stumbling block. He would like to give the minimum time and try to draw the maximum recovery for the client (the lawyer’s interests are, ipso facto, involved). The lawyer desires to work for a quick settlement. Many times, the alacrity shown is detrimental to the interests of the client, when the lawyer opts for under-settlement.

The democratic ideals are swept under the carpet by the lawyer when the clients lack knowledge about the finer points of law. This mostly happens with the unsophisticated clientele. Unable to grasp the import of the lawyer’s submissions and final recommendations, they throw up the towel. The lawyer then has the upper hand. The situational advantage, tools to control and manipulate the clients work in their favor.  The clients are left with no alternative but to accept the settlement proposed by the lawyer. The lawyer does always calculate about his time-investment.

Every profession has a set of ethical rules, a code of conduct, which aids professionalism. This demands that the lawyer values the client’s interest first. But it mostly remains the theory aspect; doesn’t happen in practical terms. This is also a personal issue and will vary from lawyer to lawyer. Lawyers with a long -term business view, give top priority to the client’s interests. They stand up to their commitment.  The lawyer knows what is best for the client. That the client may not agree for the best solution, is another issue.

Lawyers do succeed in convincing the clients and remove misapprehension in their minds. However, the lawyer who thinks on case to case basis, and ignores the long -term goals, will not be successful. Quick, cheap settlements will harm their reputation and the flow of referrals will be hampered. When the case is in progress, the lawyer is the most discussed man among the friends, relatives and neighbors. A fully informed client will reject the motivated settlements proposed by the lawyer. Such clients do exercise automatic control on the intended moves of the lawyer.  The lawyer is aware that his client is available for straight deals and nothing dubious will work.

Notwithstanding what is stated above, the lawyer’s response varies with the type of clientele.  Individual and corporate clients are treated on different footing. Most of the lawyers are given definite briefs. This is so because corporate clients have an in-house legal department, with qualified staff. The lawyer just provides the services sought for. The scope for unscrupulous practices is less, as they deal with each other professionally. The lawyer would never like to lose a corporate client. So, democracy works properly in maintaining even relationship.

As for the accident related clients, the situation is different. Clients have little say in drafting their claims. The lawyer remains active. In many cases, the client is not even consulted; the lawyer is in total command for handling the case. The client remains behind the scene. As for criminal cases, the position is entirely different. Here the responsibility of the lawyer, in most of the cases, is special. He has to negotiate a difficult case and lead the guilty (not in al cases) through the legal jargon, to make the judicial system pronounce him not-guilty and work to get a clean acquittal. So, defining goals and devising strategies remains the prerogative of the lawyer.

III. Facts:

Divorce is another area where ‘the respect for democratic ideals and the different forms of knowledge each possesses’ faces the stiff test. Most of the divorce clients use the services of a lawyer. Divorce is the breaking up of emotional bonds of two individuals, and both the parties normally engage the best legal brains to achieve their objectives. Divorce is the not the end of the story. The conditions of divorce, asset division, the alimony aspect, and the custody of children –every related issue is emotional and has financial implications.

These are hard- to- take decisions. To take a human stand between two unsatisfied human beings is comparable to tight rope-walking. Whatever may be the facts related to the case, the sole objective of the lawyer is to win the case for his client—and only one of the two contending parties in the divorce case can hope to win.  Should the lawyer goad his client to escalate demands and give encouragement to unreasonable behavior? As for the client’s point of view, the important issue is whether the lawyer is suitable to secure client’s long term interests.

The dynamics of professionalism related to divorce litigation is peculiar. Behind the scene manipulations and description are the hallmark of lawyer-client relationship in this area. Clients are dissatisfied with the lawyers as they are unable to respond to the aggressive demands of the client. The strategy and tactics of divorce are meant not to get at the truth between the husband-wife relationships. It’s only objective is to get at the divorce on the expected, so to say, the demanded conditions. The operation of the legal process in divorce proceedings is tough and it hurts the parties beyond the tolerable limits at every hearing of the case.

Austin Sara’s book makes an excellent reading on this ever-burning and perhaps never extinguishable issue. "This lively and compelling book takes the reader into the offices of divorce lawyers for fascinating glimpses into the difficult and tense moments when lawyers and clients negotiate divorce cases and discuss how the law works and what it can do for them. Theoretically, it is a brilliant interpretive study of the way meanings are made and contested in discussions between legal professionals and their clients.” -Sally Engle Merry, Wellesley College and Past President of the Law & Society Association (Sarat, 1995)

IV. Court Decision(s):

One:

The lawyer-client relationships are sacrosanct, but they are not above the provisions of law. Massachusetts Rules of Professional Conduct (Mass. R. Prof. C.) relating to prosecution and defense deals with issues of the criminal defense lawyer.

“Mass. R. Prof. C. 3.3(e), dealing with client perjury in criminal cases, represents an extension of the doctrine previously set out in the Standards Relating to the Defense Function, DF 13(b), and is a rule that, although rarely used, should be understood by criminal defense lawyers. First, this rule is limited to criminal cases and only to the proposed or actual testimony of a defendant.

If a witness other than the defendant either intends to or does testify falsely, and the lawyer knows of its falsity or learns of its falsity, then Rule 3.3 (a) (4) requires the lawyer to take remedial measures which would include, at the minimum, calling upon the witness to rectify the false testimony, and if the witness refuses to do so, revealing the false testimony to the court. Former DF 13(b) required a lawyer who knew that a client intended to testify falsely to remonstrate with the client not to do so, and if the client refused, then to file an ex parte motion seeking permission to withdraw from representation.

Rule 3.3(e) includes these provisions, but adds direction as to what obligations a lawyer has if the permission to withdraw is denied or the lawyer learns only during the trial or knows that the client has testified falsely at trial. Again, the lawyer is mandated to call upon the client to rectify the false testimony, but failing that effort, the lawyer cannot either assist the client in presenting the false testimony or reveal the false testimony. These obligations continue until the end of the case, including appeals.”(Rosenfeld…)

Two:

“Attorney and client; malpractice; proximate causation; breach of fiduciary duty; substantial causation; conflict of interest. Lanham Act § 43 (a) (1) (B); advertising; promotion; disparagement. CPLR 3211 (a) (1). Action for unpaid legal fees. Counterclaim plaintiffs had operated a New Jersey boutique that sold only Fendi merchandise. Counterclaim defendant law firm had represented them in a civil action in Federal court against a competing boutique in Manhattan and parent company Fendi USA. That court had dismissed a claim made under the Federal Lanham Act, leaving alleged violations of New York State laws concerning product disparagement and slander.

For these claims, counterclaim plaintiffs had rejected a $1.4 million settlement offer, and at jury trial prevailed on each; damages awarded had totaled $110,000. Counterclaim plaintiffs alleged that counterclaim defendants’ simultaneous representation of high-end fashion house Prada, then poised to acquire an ownership interest in Fendi, entailed an undisclosed conflict of interest. The court found that counterclaim plaintiffs had failed to establish the proximate cause essential to establish malpractice.

Counterclaim plaintiffs pointed to an E-mail that a Fendi executive had sent to the law firm. But the court determined that its contents failed to show that the competitor boutique’s employees had engaged in advertising or promotion within the Lanham Act’s meaning, refuting the theory that but for the firm’s failures, the executive could have given testimony that would have altered the Federal court’s disposition of the claim based on the Act. Further allegations of malpractice constituted merely dissatisfaction with the firm’s strategic choices, the court stated, and it disagreed that the E-mail and court transcripts counterclaim defendants submitted were not documentary evidence as the term is used in the CPLR.

However, the court declined to dismiss the counterclaim for breach of fiduciary duty, stating that it might be inferred from alleged facts that the alleged conflict of interest had been a substantial factor in a less vigorous prosecution. The court noted that attorneys must not only be alert to obvious conflicts, but to forces that might operate more subtly on them to diminish their work. Weil, Gotshal & Manges LLP v. Fashion Boutique of Short Hills, Inc., Index No. 100630/2003, 12/3/03 (Lowe, J.).(Law report…..)”

V. Policy &Analysis:

Some analysis is required as to how the lawyers go about managing client’s expectations. With vast professional experience, the lawyer is able to gauge this aspect at the first contact. The strategies adopted by the lawyer are simple. He avoids giving reference to set figures as for the case outcome, the expectations of the clients are downplayed, and an atmosphere of uncertainty is created.

The timings of the whole ‘game-plan’ are well thought out by the lawyer. The type of injury, the position of recovery at the time the client contacted the lawyer are important. It is a game of legal points plus play upon the client’s psychology. It is also observed that many clients avoid at the first meeting questions about recovery of specific amount.

Even with his expertise, the lawyer really does not know until the end, what is the worth of a particular case. Many factors play and intervene in between the final settlement. The intelligent clients may try to pin down the lawyer but it is not easy to do so with the discernable one. None, especially the lawyer engulfed in the strength and weaknesses of the legal provisions, will dare to promise a definite sum to his client. No guarantee of the ultimate success of the case, on the lines imagined and set out by the client!

In reality the lawyer may know what the case is worth but it is not prudent to be specific. Fortunately or unfortunately, the medical practitioners have also developed a different yardstick of billing, once it is known that the patient is going to get reimbursement of the medical expenses. The doctor asks an identical question to the patient, which the client (patient) is going to ask the lawyer. The medical practitioner does know how long the treatment will last; the lawyer has to take the client’s word for that. The chances of the lawyer being mislead to extract more compensation can not be ruled out. The lawyer will at best give his version of the case, without creating undue expectations in the mind of the client. The correct policy is to keep the expectations down.

But the stand taken by some of the clients offer real test to the sincere desire of the lawyer to pursue and ‘respect the democratic ideals and different forms of knowledge he possesses.’ “. One lawyer reported that "some clients bring in clippings of somebody who was malpracticed upon" and won a large jury verdict. Another lawyer commented, "It is amazing how many clients come in and say that they are not trying to get rich off this case, but think they should get $100,000 for a whiplash or a slip and fall." Still another described the situation of a woman with some questionable soft tissue injuries who insisted that her case was worth $700,000.”(Sarat, 1995)

Lawyer-client relationship is a legal concept. It is designed to offer protection to communications between a client and the lawyer and keep the communication confidential. Honest communications between the lawyer and the client are encouraged. In USA, the provisions of the privileges vary from State to State. The privileges generally do not end with the client’s death. The general requirements for a proper assertion of lawyer-client privilege in many States of USA are:

“The asserted holder of the privilege is (or sought to become) a client; and the person to whom the communication was made is a member of the bar of a court, or his subordinate, and in connection with this communication, is acting as an attorney; and the communication relates to a fact of which the attorney was informed by his client, without the presence of strangers, for the purpose of securing primarily either: an opinion on law, or legal services, or assistance in some legal proceeding, and not for the purpose of committing a crime or tort; and the privilege has been claimed, and the privilege has not been waived.The attorney-client privilege is separate from and should not be confused with the work-product doctrine.

An attorney speaking publicly in regards to a client's personal business and private affairs can be reprimanded by the ABA and/or disbarred, regardless of the fact that he or she may be no longer representing the client. Airing of a client's or past client's dirty laundry is viewed as a breach of fiduciary responsibilities.”(Wikipedia….)

Lawyers’ & Clients’ responsibilities:

Strict standards of professional responsibility have been laid out. The rules are both ethical and professional. The lawyer must exercise the knowledge of law as applicable in the client’s case. He can not simultaneously represent you and the other client with legal interest in the conflict. He must act in strict confidence, except otherwise the information is demanded by the court. Unless permitted by you, the lawyer can not disclose your information to a third party.

As for the client’s responsibilities, they go by the retainer agreement. The client is expected to be truthful, co-operative and responsive.  He needs to be available to the lawyer and attend legal proceedings whenever requested and pay the legal bills in time

“These duties and responsibilities are pretty common sense, so they may be implied even without a retainer agreement that expressly reduces them to writing. Regardless, a failure to abide by them may result in a lawyer deciding to terminate your client relationship.”

(Client…..)

Instead of getting confused mid-way through the litigation, you need to have a frank discussion with the lawyer that you intend to engage. Yu must ask certain basic questions, if it is your first interaction with the lawyer. A good lawyer will appreciate that gesture. Ask him about his experience in the line, in handling cases similar to that of yours. What is the expected outcome of the case and what alternatives are available to you to resolve the matter and their merits. The approximate time required to arrive at the final outcome. What is the best course, mediation or arbitration? What are the legal fees and the stages of payment?

What would be the total bill, including all expenses, from the beginning to the conclusion of the case? How will be the progress of the case communicated to you? Is reasonable settlement possible and what is the method of the lawyer to resolve the issue? Whether it is unyielding, aggressive and the approach is by strict legal standards? Who will be in charge of the case (if it is a big office, and several lawyers are working) Are the juniors capable to handle substantive legal issues in the absence of the senior lawyer? A frank discussion about such issues, creates an atmosphere of respect, and you get the estimate of each other whether working together on a long term basis is possible.

VII. Conclusion:

In all the lawyer-client relationships, the contingency-fee area hurts the client most. Mutual interests come into direct conflict. In the settlement process, the maximum control is exercised by the lawyer. Most of the lawyers adopt a ‘carrot and stick’ policy in this regard. A lawyer is interested in quick settlement of the case, because it saves his time, and he can give time to other referrals.

The trial procedure is often lengthy and may contain elements of uncertainty. No lawyer likes an unfavorable judgment against   him (his client). Settlement is the safest course; and it involves no suffering or loss for the lawyer. The only question is, whether lawyer’s self-interest gets the upper hand. If it is so, the lawyer is not acting according to the democratic ideals and he is not using his legal knowledge properly.

The strength and weakness in the position of the client is the real test for the democratic ideals. It is opined that when given the full freedom to handle the case, the lawyers tends to sidetrack the client’s interests. The client is the customer, he pays hefty fees to the lawyer, and it is a commercial transaction. The wise saying goes, “the customer is the king.” So, a client needs to be assertive, not submissive. He should not hesitate to take control. He is within his rights to refuse to accept the settlement.

His genuine problem is how to do the fair assessment, but he can do it this way. Try and locate the jury verdict orders. Case valuation literature of similar cases won’t be difficult to find. Make an impartial study and come to an independent conclusion. The best alternative, but not always practical, is to engage another lawyer to evaluate the settlement offer. This again devolves expenditure, and who is to decide the merit of this evaluation? Personal jealousies amongst the lawyers may surface and spoil the genuine objective of the evaluation.

But a grim view of the situation as for the lawyers handling the case need not be taken by the clients. A lawyer is not there to handle one case. He continues to receive referrals and takes a fair view of the current legal trends and the recent decisions of the courts. He is spoiling his own long -term interest by spoiling the client’s interest. So a lawyer devises his own policy from the point of view of long-term reputation and the short-term payoffs. The scale will tilt in favor of reputation, in keeping with the modern management trends and ideals. Getting new clients is more important than settling a case at hand. A satisfied client is the best representative for the lawyer’s future referrals.

“The complexities differ substantially from context to context, but together they serve to undercut simple views of professional dominance in the lawyer-client relationship. Clearly, lawyers often have the ability and the opportunity to dominate, but case complexities (divorce), professional norms and experience (poverty and civil rights practice), or concerns about long-term economics (corporate and contingency-fee practice) serve to limit what the lawyers do in practice” (Kritzer….).

References Cited:

1. Sarat Austin, Felstner Wiliam L. F. Book: DIVORCE LAWYERS AND THEIR CLIENTS: POWER & MEANING IN THE LEGAL PROCESS, 1995.

www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/sarat3.htm - 11k - Cached -. Review by William L. F. Felstiner, William L.F. is Professor in the Law and Society Program at the University of California, Santa Barbara, and Distinguished Research Professor of Law at the University :Retrieved on September, 13,2007

2. Wikipedia-Article: Attorney-client privilege -

en.wikipedia.org/wiki/Attorney-client_privilege - 31k –Retrieved on September 13,2007

3. Kritzer, Herbert M. Law and Social Enquiry- Volume 23 (Fall, 1998), pp. 795-821

Contingent Fee Lawyers and Their Clients: Settlement Expectations, Settlement realities, and issues of control in the lawyer-client relationship

www.polisci.wisc.edu/~kritzer/research/contfee/settle.htm - 92k -Retrieved on September 13, 2007

4. Sarat, Austin, Felstiner William L.F. Book: Divorce Lawyers and their clients: Article: Power and meaning in the legal process, 1995, Oxford University Press.  Cart ISBN13: 9780195117998 ISBN10: 0195117999. Retrieved on September 13, 2007

5 .Rosenfeld, Arnold R. Article: Ethical Obligations of Criminal Defense Counsel-Bar Overseer.

www.mass.gov/obcbbo/defense.htm - 18k - Retrieved on September 13, 2007

6. Article: Client-Lawyer relationship

...courts.state.ar.us/rules/.../client_lawyer_relationship/index.cfm - 205k – Retrieved on September 13, 2007

7. Article: Law Report - OCT- 2003

...www.nycourts.gov/comdiv/law_report_-_January_2004.htm - 64k - Cached