Concept
Beyond the Law
Lawyer as advisor
Beyond the Law
Rule 2.1 lets a lawyer say more than the law says. After commanding independent professional judgment and candid advice, it adds: “In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.”1 The first two commands govern the quality of what a lawyer says. This sentence governs its subject matter, and it does so by permission. “May” tells the lawyer that advice need not stop where the statute books stop, and that a lawyer who raises a nonlegal consideration is still acting as an advisor.
Clients rarely bring a problem that law alone can answer. A choice can be lawful and still be costly, unwise, or wrong. A client told only that the choice is lawful may hear a green light, when the legal answer is one input among several. A lawyer confined to the legal slice might see the rest of the picture, such as the strain a lawful step would put on a relationship or the burden it would lay on the client's conscience, and still feel obliged to keep quiet. The permission removes that restraint. The client lives with the result, so the client needs the whole picture.
Two features keep the permission in proportion. The sentence grants discretion and imposes no command, so the lawyer judges in each matter whether such counsel will help. And the considerations it names are those relevant to the client's situation, so the lawyer offers a perspective for the client's use and does not substitute the lawyer's own moral or political views. The decision stays with the client, a division of authority taken up later in this chapter. The first subsection below addresses the moral side of a lawful choice; the second turns to the cost, business risk, and other practical facts that sit beside the law in most real advice.
Moral and Ethical Counsel
Rule 2.1 names “moral” first among the considerations beyond the law.2 The comments add that “[i]t is proper for a lawyer to refer to the relevant moral and ethical considerations in giving advice.”3 The permission matters most where law and morality part ways, because the client then holds a legal right whose exercise may be morally wrongful. Three examples show the gap: a debtor who can invoke the statute of limitations against a debt, a party who can invoke the statute of frauds, and a litigant entitled to cross-examine a truthful witness.4 In each, a legal right is not a moral right. A lawyer who explains only the legal right has answered whether the client may act and left open whether the client should.
Moral dialogue also respects the client. A lawyer who assumes the client wants the most possible money or the most possible freedom has invented the client's preferences, and so has a lawyer who assumes the client wants to avoid a debt by pleading the statute of limitations.5 Many clients hold values that weigh against exploiting a technicality, and the lawyer learns of them only by asking. A client told only that a defense exists may also treat the question as closed.
That exchange has two features worth copying. The lawyer gave the full legal picture first, so the moral comment rested on candid legal advice and did not replace it. She then framed the moral point as a question about how the client saw the matter, which invited him to reason from his own commitments. The second feature follows from the comments, which treat the relevant considerations as including the client's own tradition of responsibility to others, so that the lawyer helps the client think the issue through from within that tradition.6
The structure of the relationship sets the same limit. A lawyer is a fiduciary, someone to whom another person's affairs are entrusted, and as one practitioner puts it, “the relationship isn't about you”; the client is the focus.7 A lawyer who presses a personal morality on the client risks making the matter about the lawyer.
The first lawyer went past the counsel the rule contemplates. The permission covers raising considerations relevant to the client's situation so the client can weigh them, and an ultimatum gives the client nothing to weigh.8
The conversation takes skill in both directions. A lawyer risks intimidating or overreaching with a less powerful client, and risks being intimidated or ignored by a more powerful one.9 Either way, the aim is to put the moral dimension on the table without taking the decision off it.
Rule 2.1 states a permission, so a lawyer who confines advice to the law has not violated it, and a lawyer who raises moral considerations has not exceeded it.10 One scholar proposes that when the gap between law and justice is significant, the lawyer should be responsible for making sure the client knows there is a moral choice, and that it is the client, not the law and not the lawyer, who is primarily responsible for injustice if it occurs.11 That is a proposal about what the duty should be, not a description of what the rule says. Exam answers go wrong in two directions: treating Rule 2.1 as requiring moral counsel, and treating it as authority for the lawyer to insist on the lawyer's own morality.
Economic and Practical Counsel
Rule 2.1 lists economic factors among the considerations a lawyer may raise, beside moral, social, and political ones, so counsel is not confined to what statutes and cases say.13 The comments explain why the permission matters: advice couched in narrow legal terms may be of little value to a client, especially where practical considerations, such as cost or effects on other people, are predominant.14 Cost, business risk, and consequences for others are therefore part of advising, not a detour from it. The previous subsection showed a lawyer helping a client weigh the moral side of a lawful choice; this one concerns the ordinary companions of that choice, the money, risk, and relationships it will touch.
Clients seldom experience a legal question as only a legal question. A client has a business to run or a life to arrange, and the law is one of several constraints. Whether to sign a contract, accept a settlement, or press a claim turns on what each path costs, what it risks, and whom it touches, and the legal analysis is one input. A lawyer who answers only that input can be entirely accurate and still leave the client unable to decide, because the facts that decide the matter went unmentioned. The client may never notice the gap. A fiduciary is entrusted with another's affairs in circumstances that often make close supervision difficult or undesirable, so the client cannot tell which risks went unspoken and depends on the lawyer to notice them.15 Law and economics are intertwined in modern practice, and the lawyer must be able to offer legal and nonlegal advice in a complete and coordinated manner.16
For the transactional lawyer the consequence is concrete. A lawyer who handles a transaction or other matter and fails to advise the client about business-related risks, so that the client can make an informed business decision, is at risk of malpractice liability.17 Rule 2.1 is phrased as a permission, so this exposure comes from the law of professional negligence and not from the rule's text. The two fit together: the permission tells the lawyer that raising the risk is within the role, and the liability tells the lawyer that silence can carry a price. The lawyer's task is to put the risk before the client; the client then makes the business call knowing what the lawyer knows.
In both scenes the contract is legally sound, and the difference lies in whether the lawyer connected its terms to the client's business. Drafting quality shows whether a contract works as a legal instrument. The advisor's further question is whether it works for the client.
Litigation calls for the same attention to consequences. In Gentile v. State Bar of Nevada, the opinion draws a comparison: a lawyer may recommend a plea bargain or civil settlement to avoid the adverse consequences of a possible loss after trial, and so too a lawyer may take reasonable steps to defend a client's reputation and reduce the adverse consequences of an indictment, especially in the face of a prosecution deemed unjust or commenced with improper motives.18 The opinion adds that a defense attorney may pursue lawful strategies to obtain dismissal of an indictment or reduction of charges, including an attempt to demonstrate in the court of public opinion that the client does not deserve to be tried.19 The passage matters here for what it says about the lawyer's job: the job reaches the effects of a proceeding on the client's reputation and standing, and counsel about those effects belongs to it.
The permission has limits that follow from the roles of lawyer and client. Raising cost, risk, or reputation informs the client, so the business decision stays with the client, as the sections on the advisor's boundaries explain. Students commonly err in two ways. One treats accurate legal advice as complete advice, so that a lawyer who answered the legal question and said nothing of an obvious business risk looks blameless. The other reads the permissive wording of Rule 2.1 to mean that silence about practical risks can never expose a transactional lawyer to liability.