Division of Authority Between Attorney and Client: The Case of the Benevolent Otolaryngologist
Robert P. Burns & Steven Lubet | 2003 U. Ill. L. Rev. 1275
Who makes the decisions within the lawyer-client relationship? This question arises frequently in the course of representation, but it is seldom directly addressed. Because of the position of the lawyer, the client is not consulted on many decisions, a situation that may be more pronounced for individuals who are less experienced in dealing with lawyers.
This article takes a unique approach in analyzing the effects of the Model Rules of Professional Conduct on the lawyer-client relationship, as Professor Lubet presents the heuristic of The Benevolent Otolaryngologist. Using the heuristic as a basis for analyzing the ends/means distinction found in Model Rule 1.2, Professors Burns and Lubet analyze how the current version of the Model Rules and the proposed Ethics 2000 rules affect the division of decision-making authority. By noting the differences between the effects of the rules on a familiar decision made within a doctor-patient relationship and a decision made within the context of the lawyer-client relationship, the article attempts to take the debate into a context without our usual preconceptions.
Problems arise primarily when the lawyer and the client are faced with difficult decisions regarding the means of achieving a particular objective. After an analysis of the current rules, Professor Burns concludes that ethical decisions regarding the means of representation will continue to be made by lawyers, who rely on their individual notions of good practice, though clients have an argument under the current rules that many decisions as to “means” should be theirs. Professor Lubet analyzes the rules proposed by the Ethics 2000 Commission and notes the inherent inadequacy of the proposal, which would create a situation in which the client must either face the withdrawal of counsel or choose to discharge the lawyer when the two parties disagree over a method or tactic that is fundamental to the representation. Professor Lubet notes the likelihood that this problem is more likely to be encountered by individual clients, who face more severe consequences than their corporate counterparts. Professor Burns concludes by noting that the Ethics 2000 proposed changes to the Model Rules are not as likely to have an effect on the situation as are local legal cultures.