GPSolo Magazine - July/August 2004

Can Your Client Be Your Teammate?

By Mark L. Tuft

In recent years, cross-functional teams have become crucial to business success. They are an integral part of many different types of organizations: hospitals, public and closely held companies, governmental entities, educational settings, and nonprofit organizations. Teams are typically comprised of interdisciplinary employees, and sometimes other members, who collaborate on specific objectives, rather than making individual contributions to a project in a vacuum. Teams are created to foster creative thinking, maximize resources, decrease costs, and increase customer satisfaction. Enhanced productivity, better cooperation and unity, reduced misunderstandings, improved morale, and a greater identification with the overall project goal are all cited as benefits of team creation within an organization.

Lawyers are now asking whether the effective interdependence and communication exhibited in the cross-functional team translate to the lawyer-client relationship. Can the lawyer take advantage of the “team approach” to reach these same results? Or does the fiduciary nature of the lawyer-client relationship preclude lawyers from teaming with their clients? The answer lies in a careful balance between these concepts. Lawyers can use the collaborative team approach to improve communications and client relations, coordinate the roles that the lawyer and client each perform in the relationship, and better achieve goals related to the matter. The lawyer-client team cannot be seamless, however, and distinct boundaries must be drawn to allow the lawyer to maintain professional independence and to fulfill his or her fiduciary responsibilities to the client.

Creating a Lawyer-Client Team

A lawyer-client team may be no bigger than an individual lawyer and an individual client. Teams may expand, however, to include multiple clients or institutional clients such as corporations, partnerships, and government entities. Lawyer-client teams may also include inside counsel or co-counsel, as well as specialists such as accountants, investment advisors, social workers, and other professionals who are all dedicated to attaining the client’s goals.

Structuring the professional relationship.

Determining the nature of the professional relationship should be the first consideration when teaming with a client.

Who is the lawyer’s client?

The client may be an individual or an organization or other institutional client. The representation may involve a single client, joint clients, or a group of clients. The client or clients may be acting on behalf of themselves or on behalf of others, such as when the client acts as a trustee, conservator, or other fiduciary. Identifying who will be the client at the outset is critical in establishing to whom the lawyer owes professional responsibilities and to prevent misunderstandings among potential team members.

What is the lawyer’s job?

Determining the scope of the representation is necessary in deciding whether a lawyer-client team approach is appropriate. For example, the team approach may be more suitable if the lawyer has been asked to undertake an entire project than if the lawyer’s representation is limited. As explained in ABA Model Rule 1.2(c), a lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.

The role the lawyer is asked to undertake may also affect the suitability of creating a lawyer-client team. For example, the team approach may or may not be appropriate depending on whether the lawyer is asked to be the client’s advisor, negotiator, or advocate in a particular matter.

A lawyer has a great deal of flexibility at the beginning of the engagement in deciding who the lawyer can and will represent, as well as the scope and other terms of the representation. Creating a successful lawyer-client team at the outset of the relationship may be more achievable when the lawyer is in a position to help structure the relationship than later when the lawyer may not have the same degree of flexibility.

Defining common goals and objectives.

Knowing the client’s preferred outcome will help determine how the lawyer shapes his or her advice and legal services. ABA Model Rule 1.2(a) provides that, subject to certain limitations, a lawyer must abide by the client’s decisions concerning the objectives of the representation and consult with the client as to the means by which they are to be pursued. Although it is the client, not the attorney, who ultimately determines the objectives to be pursued, both the lawyer and the client need to be involved in the process of setting those goals to make sure that they are clearly understood and achievable.

In determining objectives, the client needs to be sufficiently informed in order to make intelligent decisions. Therefore, the client will want to take into account the lawyer’s estimate of an expected outcome based on different courses of action and the strategy the lawyer recommends to attain the desired result. Studies show that people are happier and more committed to making the process work when they have some control over the process. By collaborating with the client as a team, the lawyer will not only help the client make an informed choice about alternative strategies but also will give the client a sense of ownership of the process. The client, having determined the desired goal or outcome and having participated in discussions regarding strategic considerations, can then focus on the client’s contributions to the team and be confident that the lawyer will follow the agreed-upon legal strategy.

It follows that a client who collaborates with the lawyer in defining common objectives, including managing costs, will be more willing to pay for the lawyer’s services in performing the work.

Developing a communication structure.

Prompt and effective communication between the lawyer and the client is necessary for the client to effectively participate in the representation. See ABA Model Rule 1.4, Comment [1]. Lawyers are required to keep their clients reasonably informed about the status of the matter and promptly comply with reasonable requests for information. Yet, poor communication is the most-cited reason for clients’ dissatisfaction with their lawyer.

ABA Model Rule 1.4(b) requires that a lawyer explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Comment 5 to the rule points out that adequacy of communication depends in part on the kind of advice or assistance that is involved and the client’s reasonable expectations for information.

The lawyer and client should jointly define the communication process to be followed. Does the matter require minimal communication so long as the desired results are achieved, or does it require consistent availability of the client in all aspects of the representation? Some clients want direct contact with their attorney, while others will be happy with paper or electronic communication. The communication structure may take the form of daily conversations, weekly meetings, a monthly status report, or online dissemination of information.

The team may want to consider setting up an extranet or web room for direct access to the project, including correspondence, attorney work product, and document preparation. Setting up an extranet for a specific client matter may also afford the client more frequent and convenient access to his or her file.

Using an extranet may be a viable way to limit as well as extend communications between team members, where the team includes other professionals and is not limited to one client and one attorney. Lawyers can limit access to information on the extranet site by providing separate access codes for each team member. In that way, the lawyer can provide to the client information that does not necessarily go to other team members.

When determining the communication structure, it is important to keep in mind that lawyers have the professional responsibility to maintain confidentiality and prevent inadvertent disclosure of confidential client information. Therefore, the lawyer-client team should ensure that any electronic communication, or extranet access, includes computer firewalls and password protection. Appropriate agreements should be executed with vendors and non-client team members to ensure that proper confidentiality and security procedures are followed by all users.

Delineating responsibilities.

Applying the team approach to the attorney-client relationship reinforces the role of each participant in the process. A collaborative team is not a committee of equals, reviewing and approving each other’s work. Each person on the team is there to contribute his or her specific skills and expertise.

Where other professionals are involved, a determination should be made whether they should be consulted separately or included as part of the team. In making this determination, the lawyer should be sensitive to issues of attorney-client privilege and attorney work product. This requires the lawyer to be well grounded in the law of evidence as it applies to the particular client matter.

Upon embarking on a project, the lawyer-client team must define the roles of its participants. For example, the lawyer should help the client understand that the client, the outside consultant, and the lawyer all have distinct roles on the team. The team then becomes the sum of the expertise of its members. This should help each team member (including the client) stay focused on his or her role in the process and less focused on the minute details of the work in progress of other team members.

Limitations on the Lawyer-Client Team

In most professions, a contractual or agency relationship benefits from team collaboration. For example, a real estate agent is as invested as her client in selling the client’s property, and a contractor is likewise invested with the owner in the outcome of a home improvement. The lawyer-client relationship has elements of both contract and agency. It is neither purely a contractual nor purely an agency relationship, however, owing to the unique nature of the lawyer’s obligations to the client, duty to maintain professional independence, and duties to the court and other parties.

Fiduciary nature of the relationship.

Although the lawyer has a duty to represent the client diligently in a particular matter as defined by the scope of representation, the lawyer is not bound to a particular resolution or outcome. Some transactions and consultations are more appropriate for lawyer-client teamwork and will produce a more dependable outcome than others. Such activities may include consultations on employee relations, filing of incorporation or intellectual property documents, or writing an estate plan. Other activities such as litigation, including trial strategy and discovery matters, are better left to the lawyer’s control. Clearly, the client must understand that the lawyer cannot guarantee a particular outcome or result when representing a client in a civil litigation or criminal matter.

The attorney and client stand in a fiduciary relationship that binds the attorney to the most conscientious fidelity to the client. In this way, the lawyer and the client do not stand in the same relation to one another, as do other members of a cross-functional team. In the lawyer-client relationship, the lawyer acts in the best interests of the client. The lawyer’s fiduciary duties to the client include loyalty, confidentiality, competence, and communication. These duties are non-delegable and are not reciprocal; the client does not owe these same duties to the lawyer.

The benefits of working hand in hand with the client in achieving the client’s objectives are, therefore, limited by the lawyer’s duty to protect the client’s interests and provide competent representation. As ABA Model Rule 1.1 makes clear, a lawyer must provide competent representation to a client regardless of the character of the representation. The lawyer-client team approach could not, for example, include complete client supervision or control over the lawyer’s work; nor could the lawyer’s responsibility to provide competent legal services be delegated to the client.

Terminating the relationship.

Unlike other contractual or agency relationships, the client may discharge the attorney and end the relationship at any time, with or without cause, while the lawyer may withdraw only under circumstances that are consistent with the lawyer’s fiduciary duties to the client. Also, contrary to normal agency principles, where the agent’s duties terminate when the agency ends, certain of the lawyer’s duties continue beyond the termination of the lawyer-client relationship. For example, the lawyer’s duty to protect the client’s confidential information survives termination of the relationship.

Under certain circumstances, the lawyer may be required to withdraw, for example, when the representation would result in a violation of the rules of professional conduct or other law. See ABA Model Rule 1.16(a)(1).

ABA Model Rule 1.2(a) confers on the client the ultimate authority to determine the purposes to be served by the representation within the limits imposed by law and the lawyer’s professional obligations. The lawyer-client team approach, of course, must accord with the rules of professional conduct and other law. Where the lawyer believes that the client expects from the lawyer assistance that is not permitted by the rules or other law, or if the lawyer intends to act contrary to the client’s instructions, the lawyer must consult with the client regarding the limitations on the lawyer’s conduct. See ABA Model Rules 1.2, Comment [13] and Rule 1.4(a)(5). It is foreseeable that the lawyer and client may disagree about the means to be used to accomplish the client’s objectives. If a mutually acceptable resolution or agreement cannot be achieved, the lawyer may withdraw from the representation under ABA Model Rule 1.16(b)(4). Conversely, the client may resolve the disagreement by discharging the lawyer.

Lawyer’s duties to the court and to third parties.

Lawyers have independent duties to the court and to third parties that may limit their ability to team with their clients. In essence, a lawyer’s duty of loyalty is as much to the law as it is to the client. Although a client has a right to consult with the attorney about the means to be pursued in a particular matter, the lawyer is not required to follow the client’s course of action if it is fraudulent, is illegal, or may interfere with the lawyer’s responsibilities to the court or to third parties. For example, if the client wants to pursue a particular course of action that would result in a “frivolous” lawsuit, the lawyer has a duty to the court not to bring the action. Also, under ABA Model Rule 3.3(a)(2), a lawyer has an obligation to bring to the court’s attention controlling legal authority, even if it does not support the client’s case. In litigation matters, lawyers owe a certain degree of fairness to opposing parties and their counsel under ABA Model Rule 3.4 and are required to be truthful in dealing with others on a client’s behalf. See ABA Model Rule 4.1.

Lawyer’s duty to maintain professional independence.

Regardless of the merits of the lawyer-client team approach, lawyers have a duty to maintain a certain detachment from the influence of client motives, third-party direction, and government influence in order to provide objective professional advice. Lawyers need to be free from financial, personal, and other influences in order to make disinterested decisions that, in the lawyer’s professional judgment, are in the client’s best interest and are consistent with the law. ABA Model Rule 1.2(b) makes clear that a lawyer’s representation of a client does not constitute an endorsement of the client’s political, economic, social, or moral views or activities.

The lawyer’s professional independence makes the lawyer a unique kind of advisor and advocate. This obligation on the part of lawyers is both consistent and inapposite with the team approach. It is consistent because teams are formed to foster creative and independent thinking. It is inapposite because, as a team, the lawyer and client cannot be required to come to a consensus as to the application of the law. Only the lawyer can advise and apply the law to the particular situation.

Should You Create a Lawyer-Client Team?

The purpose of creating a team is to bring cross-functional talents together to achieve a defined goal more effectively than could be achieved through a hierarchical process. As long as the client understands the professional limitations of the lawyer, creating a lawyer-client team can be an excellent vehicle for success. The end result can be achieved with better communication, at lower cost, and perhaps in less time. More importantly, when the client is more invested in the process, even if the exact desired outcome isn’t achieved, greater client satisfaction will typically result, making for a better overall lawyer-client relationship.

Mark L. Tuft is a partner with Cooper, White & Cooper, LLP, in San Francisco, where he specializes in representing attorneys and law firms on professional responsibility and liability matters. He is a Vice Chair of the California State Bar Commission for the Revision of the Rules of Professional Conduct and is an Adjunct Professor at the University of San Francisco School of Law, where he teaches legal ethics. He can be reached atmtuft@cwclaw.com. He would like to acknowledge the valuable assistance of Stephanie Downs, a third-year student at USF, in connection with this article.

 

 

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