Question

I am confused about my obligation to discuss with a client the strategies that I will use to meet the client’s needs. I always thought that the lawyer determined which steps to take for the client. Am I wrong?

Answer

This is an area of confusion under the Rules of Professional Conduct. Lawyers have always been taught that the lawyer determines the “strategies” to be used to obtain the objectives established by the client for using the lawyer’s services. It is also a matter of timing because there are certainly instances when a lawyer cannot consult with a client before making a decision about the representation. What is not clear (or easily decided) is the level of involvement of the client in deciding the strategies to be used to obtain the best result for the client.

SCR 20:1.4 of the Wisconsin Rules of Professional Conduct addresses communication with clients. Under this rule, a lawyer is obligated to:

“(2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished.”

This language places an ethical obligation on the lawyer to consult with the client about the means or strategies that the lawyer will use to accomplish the objectives that the client has identified. The language acknowledges that this consultation must be handled reasonably, which gives flexibility to the lawyer for making decisions in those instances when timelines or other circumstances would not allow a consultation before action must be taken. The ABA Comment to this rule gives additional guidance to lawyers:

“(3) Paragraph (a)(2) requires the lawyer to reasonably consult with the client about the means to be used to accomplish the client’s objectives. In some situations – depending on both the importance of the action under consideration and the feasibility of consulting with the client – this duty will require consultation prior to taking action. In other circumstances, such as during a trial when an immediate decision must be made, the exigency of the situation may require the lawyer to act without prior consultation. In such cases the lawyer must nonetheless act reasonably to inform the client of actions the lawyer has taken on the client’s behalf….”

This ethical duty to involve the client in determining the means by which the lawyer will provide representation expands upon the lawyer’s duty to communicate with the client. This does not mean that every decision made by the lawyer must be preapproved by the client, but it does envision far greater communication by the lawyer about the actions being taken in the representation. It is always important to keep this in mind when providing representation because it is a clear expectation that the lawyer will communicate with the client about the steps being taken to address the client’s legal needs.

» Cite this article: 95 Wis. Law. 51 (June 2022).