Comments on Proposed Rules 1.2, 1.4, and 2.1 and A Proposal that Model Rule 1.2 Require Lawyers to Allow Clients to Choose Whether to Pursue ADR - Center for Professional Responsibility

Testimony Before the ABA Ethics 2000 Commission, July 6, 2000, New York, N.Y.

Comments on Proposed Rules 1.2, 1.4, and 2.1 and
A Proposal that Model Rule 1.2
Require Lawyers to Allow Clients to Choose Whether to Pursue ADR

Robert F. Cochran, Jr.
Louis D. Brandeis Professor
Pepperdine University School of Law

In 1983, when the American Bar Association adopted the Model Rules of Professional conduct, Alternative Dispute Resolution (ADR) was primarily the concern of Mennonites, Native Americans, and a few ivory tower academics. Many lawyers had never heard of it. Ten years later, the front page of the California Business Lawyer bore the following headline: "ADR: It's Not Just an Alternative Anymore, It's an Integral Part of Any Litigation Practice." When I saw that headline, I realized that ADR had arrived. One of the challenges to the bar is to update the rules of professional conduct in light of the emergence of ADR. ADR is now an integral part of law practice, but there are still a substantial number of attorneys who, as a result of ignorance or personal taste, have resisted the move to ADR.

In my testimony today, I will argue that ABA Model Rule 1.2(a) should be amended to require lawyers to allow clients to control the ADR decision. I realize that you have already proposed that the comment to MR 2.1 be amended to note that a lawyer may need to inform a client of ADR, but in my view MR 1.2 should also be amended to identify the decision whether to pursue ADR as a decision for the client.

Model Rule 1.2 is, of course, the rule that allocates decision-making authority in the lawyer-client relationship. First, let us consider the options that are available to the Commission as it considers how much power to give to the client. There are at least four patterns that the Model Rules and this Commission have followed as to the allocation of authority over decisions during legal representation. They are:

1. Client choice - the lawyer lays out the options, their strengths and weaknesses, and allows the client to choose between them. For example, both Model Rule 1.2(a) and Proposed Rule1.2(a) expressly identify the "objectives of the representation" and whether to accept a settlement offer as decisions for the client.

2. Informed Consent - the lawyer proposes an option, identifies the alternatives, lays out the strengths and weaknesses of each, and gets the client's consent. For example, Proposed Rule 1.2(c) requires the lawyer to obtain the clients informed consent before the lawyer can limit the scope of the representation. This is similar to Pattern One mentioned above. Both require the approval of the client, but each type of rule has a different emphasis. "Informed consent" implies that the client considers the lawyer's proposal. "Client choice" implies that the client chooses between options laid out by the lawyer.

 

3. Consultation - lawyer consults with the client about the options before the lawyer makes the choice. The current Model Rule 1.2(a) requires the lawyer to "consult with the client as to the means by which [the client's ends] are to be pursued." Arguably, this rule requires the lawyer to consult with the client about ADR. The Proposed Rule 1.2(a) would remove this provision.

4. Lawyer Control - the lawyer makes the decision and is not required to consult the client. With a few explicit exceptions, the Commission's Proposed Rule appears to leave means decisions, including the decision whether to pursue ADR, with the lawyer. I will return to the Commission's Proposed Rules at the end of my testimony.

My proposal is that clients be allowed to control the decision whether to pursue ADR. This can be accomplished by either the Client Choice Model or the Informed Consent Model. My preference is for the Client Choice Model, but I will discuss each.

  1. Alternative One: The Client Choice Model - Add underlined portion to second sentence of Proposed Rule 1.2 (a): A lawyer shall abide by a client's decision whether to pursue a means of alternative dispute resolution and whether to settle a matter.

This would follow the pattern that the Model Rules and the law generally have followed. That is, to identify specific means decisions that are for the client. For example, MR 1.2(a) expressly identifies whether to accept a settlement offer and whether to exercise particular constitutional rights in a criminal case as decisions for the client.

One of the most thoughtful comments of the Restatement (Third) of the Law Governing Lawyers identifies the factors that determine whether a means decision is allocated to the client's control. Those factors are:

[H]ow important the decision is for the client; . . . whether reserving decision to the client would necessitate interrupting trials or constant consultations; whether reasonable persons would disagree about how the decision should be made; and whether the lawyer's interests may conflict with the client's. (Restatement Section 33, Comment e)

Each of these factors suggests that the decision whether to pursue ADR should be for the client:

1. "how important the decision is for the client" - The decision whether to pursue ADR is a very important decision for the client. ADR methods are likely to resolve a case more quickly, save the client time and attorneys fees, reduce hostility between the parties, generate creative resolutions of issues, yield a more stable resolution of a dispute, and protect the client's privacy. But in some cases, ADR may be likely to waste the client's time and money or yield a poor result for the client. My argument is not that ADR is always better than lawyer negotiation and litigation. My argument is that there are risks and potential benefits to both litigation and ADR and that the choice which way to go should be made by the client. It is the client who is likely to bear most of the risks of the choice and clients are likely to be the best judges of their own interests.

2. "whether reserving decision to the client would necessitate interrupting trials or constant consultations" - Reserving this decision to the client would not interrupt trial or necessitate constant consultations. The decision whether do pursue ADR is generally made a substantial time before trial.

3. "whether reasonable persons would disagree about how the decision should be made" - As noted above, there are advantages and disadvantages to the ADR options. The lawyer cannot know how the client would choose. For example, it may be more important than the lawyer realizes for the client to maintain an amicable relationship with the opposing party. Reasonable people can differ over whether to pursue the ADR options and the lawyer should allow the client to control this decision.

4. "whether the lawyer's interests may conflict with the client's" - The lawyer and client are likely to have a conflict of interest over this issue. Pursuing ADR may conflict with a lawyer's interest in high attorney's fees or a lawyer's interest in maintaining a "hardball" image. Lawyers who do not practice in the ADR area may have to give up a case if a client chooses ADR.

It may be that the most important justification for requiring lawyers to present ADR options to clients is that clients consistently are more satisfied with ADR than with litigation and attorney negotiation. It seems that ADR increases client feelings of self-worth as clients take more control of their lives. It is hard to measure the value of this satisfaction. ADR empowers clients. Lawyers should increase that empowerment, not diminish it.

My primary concern in proposing that clients be entitled to pursue ADR is with protecting client interests, but there are also policy justifications for having lawyers present ADR options to clients. If lawyers present ADR options to clients, this is likely to result in greater use of mediation and arbitration. These methods of dispute resolution may help to relieve overloaded courts and encourage reconciliation. The ultimate goal of many advocates of ADR is not merely dispute resolution, but reconciliation of the parties. The fact that mediation is likely to leave the parties less hostile toward one another may reduce the possibility of future conflict between them. This will yield benefits to society at large as well as to the individual parties.

I place this proposed rule within the same sentence that gives the client the right to control settlement, because I believe that the rules are closely analogous. Like the settlement offer rule, the ADR rule would be based on the importance of client autonomy, avoiding litigation, and avoiding attorney/client conflicts of interest. A client may want to settle a matter in order to resolve a matter quickly, avoid litigation expenses, and avoid conflict with the opposing party. Each of these factors may lead the client to want to pursue ADR as well.

  1. Alternative Two: Informed Consent - Add at end of MR 1.2(a): A lawyer may litigate a matter if the client gives informed consent.
  2. An alternative means of giving clients control of the ADR decision would be to use the language of informed consent. As you know, this Commission has proposed a rule that defines "informed consent." Proposed Rule 1.4(c) states:

    As used in these Rules, "informed consent" denotes the agreement of a person to a proposed course of conduct after the lawyer has communicated reasonably adequate information and explanation regarding the material risks of and reasonably available alternatives to the proposed course of conduct.

If the Rules were to require that the lawyer obtain the client's informed consent before initiating litigation, under this Commission's definition of informed consent, the lawyer would have to obtain "the agreement of [the client] to [initiate litigation] after the lawyer has communicated reasonably adequate information and explanation regarding the material risks of and reasonably available alternatives to the [litigation]."

Several provisions of the Model Rules and the Proposed Rules give the client a right of informed consent. Under Proposed Rule 1.2(c), the lawyer must obtain the client's informed consent to limit the scope of the representation; under MR 1.6, the lawyer must obtain the client's informed consent to the disclosure of confidential information; and MRs 1.7 to 1.12 require informed consent to several types of conflicts of interest. Surprisingly, nowhere in the rules is the lawyer required to get the client's informed consent to initiate litigation. The decision to initiate litigation is at least as important as these other decisions which require informed consent.

The Commission's proposed informed consent rule (1.4(c)) is, of course, based on the informed consent rule concerning medical patients. Forty years ago, the courts in this country began to impose liability on doctors for the failure to allow patients to choose alternatives to surgery. The recognition of this cause of action was a choice for patient autonomy and against doctor paternalism. The patient is the person who must bear the greatest consequences of the choice and the patient should control the choice.

Legal clients have similar interests in being able to choose alternatives to litigation. Litigation is in many respects to the client, what surgery is to the patient. Both litigation and surgery are likely to carry great risks and great potential benefits for the client and patient. It is not that ADR is always better than litigation, anymore that conservative medical care is always better than surgery. It is a question of who should decide. It may be that the argument for allowing clients to choose whether to pursue ADR is even stronger than the argument for allowing patients to choose medical procedures, because the medical decision is likely to be much more technical and complicated that the ADR decision. An attorney disciplinary rule requiring the lawyer to present the client with the option of pursuing ADR would be based, as is the duty of doctors to obtain informed consent from patients, on client dignity--to the extent reasonably possible, individuals should control decisions that affect them.

  1. Discussion of Proposed Rules 1.2, 1.4, and 2.1

My comments up until this point have presented the case for a client control rule or an informed consent rule as to ADR. Now, I would like to give some specific comments concerning this Commission's Proposed Rules 1.2, 1.4, and 2.1.

1. Proposed Rule 1.2 - Proposed Rule 1.2 contains one of the most surprising proposed changes to the rules. Under Proposed Rule 1.2, clients continue to control the objectives of the representation, but they no longer have the right to be consulted about the means used to obtain those objectives. This moves in exactly the opposite direction from the general direction of the law toward client autonomy. If we consider the four models of control during legal representation that I mentioned at the beginning of my comments, the Commission appears to move us from Model Three to Model Four, from consultation to pure lawyer control.

Comment 2 of the Reporter's Explanation of Changes states that the "Commission believes that the current formulation [of MR 1.2] is flawed because it . . . suggests too strongly that the lawyer never has to abide by a client decision with respect to means as distinct from objectives." The problem is that the Commission's proposed formulation continues to strongly suggest that "the lawyer never has to abide by a client decision with respect to means" and it withdraws the requirement that the lawyer consult with the client about means decisions. In my view, the Rule should expressly expand client control, not retract it. The Proposed Rule withdraws one of the few requirement that lawyers give clients any influence as to means decisions.

Comment 2 of the Reporter's Explanation of Changes to Rule 1.2 also states that "the Commission recommends that the lawyer's responsibilities to consult with the client about the means to be used . . . be determined by reference to the lawyer's duty under Rule 1.4 to keep the client reasonably informed about the representation." It seems to me that a "duty to inform" under the Proposed Rule 1.4, is a much weaker duty than a duty to "consult" under the current Model Rule 1.2(a). For example, a duty to keep the client informed would be met by notice that the lawyer has filed suit against the opposing party. A duty to consult with the client would at least require that the lawyer contact the client before filing suit and get the client's reaction to the proposed suit. Of course, my earlier argument is that the client needs some muscle. My proposals would require the lawyer to not merely inform or consult with the client, but to allow the client to decide whether to sue and whether to pursue an alternative means of dispute resolution.

If the Commission decides to retain the current Model Rule's duty to consult with the client about means decisions, it should consider making an explicit reference to ADR in the Comment to 1.2. For example, Virginia's version of the Model Rules, effective this year, added the underlined portion of the following to the Comment to MR 1.2:

Scope of Representation

Both lawyer and client have authority and responsibility in the objectives and means of representation. The client has ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by the law and the lawyer's professional obligations. Within those limits, a client also has a right to consult with the lawyer about the means to be used in pursuing those objectives. In that context, a lawyer shall advise the client about the advantages, disadvantages, and availability of dispute resolution processes that might be appropriate in pursuing these objectives.

Such an addition to the comment would not give the client authority to control the decision to pursue ADR, but it would assure that the lawyer would consult with the client about ADR.

2. Proposed Rule 1.4 - Neither the current MR 1.4 nor the Proposed Rule 1.4 give the client the right to make decisions in the representation. 1.4(a) of both rules merely gives the client the right to be reasonably informed about the status of the matter. 1.4(b) of both rules requires the lawyer to "explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation," but it does not affirmatively give the client the right to make any decisions. Part 1.4(b) is most reasonably read as defining the information that the lawyer must give to the client to enable the client to make the decisions that the client is entitled to make under MR 1.2. Comment 1 to MR 1.4 states that the client "should have sufficient information to participate intelligently in decisions concerning . . . the means by which [the client's objectives] are to be pursued . . .," but it never gives the client the right to be consulted about or to control any means decisions. MR 1.2 only gives the client control over very specific, narrow means decisions. This comment may be interpreted to only give the client the right to be consulted about the few means decisions that the client is entitled to control. We are moving in the wrong direction concerning means, from a right to be consulted to a right to merely be informed. We should be moving toward a client right to control the most important means decisions.

As noted previously, Proposed Rule 1.4 includes a very helpful definition of informed consent. Unfortunately, neither the current Model Rules nor the Proposed Rules gives the attorney the duty to obtain the client's informed consent to litigate a matter.

3. Proposed Rule 2.1 - The Proposed Comment to Rule 2.1 would add the following: "[W]hen a matter is likely to involve litigation, it may be necessary under Rule 1.4 to inform the client of forms of dispute resolution that might constitute reasonable alternatives to litigation." My concerns with the Proposed Comment is that it leads nowhere. It states that the lawyer may be required under Rule 1.4 to inform clients of alternative means of dispute resolution, but, as we have seen, neither the current nor the proposed versions of MR 1.4 require the lawyer to give such information. They merely require that clients be sufficiently informed to make the decisions that they are entitled to make and they do not give clients the right to choose ADR.

While I am discussing MR 2.1, I would like to make one suggestion that is not directly related to my ADR proposal. MR 2.1 states that it may be appropriate for the lawyer to give moral advice to the client. I believe that, whether or not the lawyer gives advice about such matters, it is important that the lawyer at least raise moral issues for discussion with the client. I suggest that you add the following language to either the text or the comment to MR 2.1:

Law, at its best, is an instrument of justice, but it can also be an instrument of injustice. The lawyer and client should consider the interests of other people when making decisions in the law office. A lawyer should discuss with a client, not only whether the client can use the law for the client's purposes, but whether the client should use the law for the client's purposes.

Conclusion

What would be the result of a rule requiring lawyers to present ADR options to clients? It is my guess that it would expand the use of ADR. I think that many clients, given the option of pursuing ADR, would do so. Nevertheless, my primary concern is not to expand the use of ADR, but to increase client dignity and client control of legal representation.

What effect would the adoption of such a proposal have on the day-to-day life of a lawyer? Lawyers would need to become familiar with ADR, but I believe that they need such familiarity if they are to provide competent service. My guess it that if lawyers are required to present ADR options to clients, at a minimum, they will develop boiler plate language that explains ADR options in clear, simple terms, and that they will include this information in their client agreements. Clients could look such materials over at their leisure.

In my view, the ABA should amend the Model Rules to require lawyers to present ADR options to clients. Whether to pursue ADR is important to the client; the decision is likely to be within the competence of the client; and the lawyer is likely to have a conflict of interest as to this issue. One of the primary purposes of the attorney is to protect the client's autonomy from interference from the state and other individuals. Attorneys should enhance client autonomy; they should not be a source of interference with that autonomy.

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