Tuesday, June 23, 2009

Duty to Represent?

Law is Cool just posted a blog entry about the lawyers' duty to represent even the unpleasant client.
Imagine two potential civil litigation clients. Both present you with problems well within your expertise and both satisfy your financial retainer requirements. Neither ask you to do anything unethical or underhanded.

The first is a quiet, respectful person who appreciates the limits of the law and wants you to pursue a clearly valid claim. The other is an unpleasant, extreme individual with a warped view of justice and a claim that is marginal.

You explain the law to both clients together with the likely results of litigation. Both ask you to go ahead and issue a claim. What do you do?
Prof Morton argues that lawyers have a duty to represent every client, even those who are unpleasant, as every person is entitled to justice. It is hard to find anything to say against that.

However, I can't say I completely agree with what is being argued in the article. My first reaction is that lawyers are the providers of a service, and as such, should have the freedom to chose who they want to do business with.

On the other hand, the right to justice is one of the most fundamental rights, and everyone should have access to a lawyer to defend these rights. It is very easy to make a parallel between lawyer and doctors, and the natural question to ask is "Should a doctor be allowed to pick and choose his patients, then?" Let's leave this topic for a potential later post, as it is not an easy comparison to make, and besides, it's not particularly relevant for our present purpose.

I think the main problem I have with this is not only with this idea of having a duty to represent someone, but also with the way the problem has been presented.

First off, this idea of duty seems rather strange to me. I understand that a lawyer might have a duty to defend the best interests of his clients, and do so to the best of his abilities. However, I can't really agree with having a duty to take a case just because someone wants you to. I don't think that just because you agree to meet with someone to discuss their case makes makes you obligated to defend them. In short, I don't want to be stuck with such a duty just because someone comes for a consultation.

Then, there's a problem with the way the situation is being presented. See, there are 2 clients: the good one, and the bad one. The Good Client, Good Case, vs the Bad Client, Bad Case. What about the 2 middle ones? What about the Good Client, Bad Case, and the Bad Client, Good Case? Certainly, the goodness of a case is independent from the pleasantness of the client.

However, from the way the question is asked, there is no distinction between a bad client, and a bad case. Such a confusion does little to help solve the ethical problem at hand.

If a client has a bad case, the normal reaction of any lawyer would be to advise him/her against going to court. This has nothing to do with how likeable the client is. But what if the client insists? The above article seems to say that lawyers (at least in Ontario), due to their oath to "neglect no one’s interest and [...] faithfully serve and diligently represent the best interests of [their] client," have a duty to launch a lawsuit and go to court should the client so demand.

I beg to differ. I think that "faithfully serve and diligently represent the best interest of the client" does not equal going to court whenever the client wants to. Indeed, if, as a lawyer, I consider going to court to be against the best interests of the client, either due to the high costs involved, or to any number of valid reasons, then it seems to me that it would be against professional ethics to launch the lawsuit. If I know that a case seems desperate, and that the client is likely to invest a huge amount of time, effort, and money into a lawsuit that s/he will very likely not win, then I would certainly think that it is not in my client's best interest to pursue the matter. If I pledge to serve my client's "best interests", then I don't see how I would have a duty to sue whenever the client asks me to.

This is certainly what happens when a client arrives with a bad case, be it a pleasant client, or an unpleasant one. Correlating bad client and bad case is just oversimplifying the issue. At worst, it is intellectually dishonest, because you then don't separate the consequences of having a bad case, with those of being an unpleasant client, and act as though lawyers who refuse bad cases do so because the clients are unpleasant.