What If My Lawyer Doesn’t Agree With Me?
It can feel encouraging and validating to consult a lawyer who happens to see your case exactly how you do. When a lawyer and client are aligned in their view on a case, it can mitigate potential conflicts in the relationship. But clients should take heed not to assume that lawyers are disloyal or the wrong fit because they see the case differently. In fact, a lawyer who demonstrates the courage to disagree with you may just be doing their job more effectively than one who tells you what you want to hear.
Lawyers wear different hats depending on the context of their work. Broadly speaking, the lawyer may be wearing the hat of counselor or advocate, and while the public may frequently conflate the two roles, they are very different.
Counselor
When the lawyer is communicating privately with a client, the lawyer’s role is to be a counselor. The lawyer must provide their sound independent judgment to the client. This means the lawyer provides analysis and advice to the client, irrespective of whether that analysis is favorable or unfavorable, and whether or not it supports or conflicts with the client’s theory of the case. Sometimes this will require telling a client that they are wrong, or that their understanding of the law is mistaken, or that they are not likely to prevail in their case. While such advice may feel deflating, in many instances it saves the client from greater heartache down the road. A lawyer’s advice to a client not to pursue a contemplated course of action, when competently given, can be invaluable, and save time, money, risk, and emotional energy.
While it is a lawyer’s prerogative to provide unbiased advice to the client, the client need not assume that the lawyer’s opinion and legal analysis is the only valid one. Competent lawyers can certainly disagree among themselves on the viability of a client’s position. Such disagreements frequently stem from, inter alia: (a) the fact that the law may not be fully developed in a particular area; (b) inconsistencies in existing precedents, including disagreements between courts; (c) reasonable disagreements concerning the interpretation and application of laws and precedents; (d) reasonable disagreements about the credibility of parties and witnesses; and (e) the lawyer’s experience with similar cases in their own practice history. When your lawyer disagrees, it is OK for you to seek a second opinion from another lawyer, and this can sometimes provide you with additional insight.
Advocate
When the lawyer interacts with outside parties, such as a court, opposing party, or opposing counsel, the lawyer’s role changes from counselor to advocate. Rather than elucidate the facts and law dispassionately and without regard to whom it favors, the lawyer must present the case in the light most favorable to the client, to the extent ethically possible. This will often mean highlighting favorable facts, discounting or explaining away unfavorable ones, presenting favorable legal authority, distinguishing unfavorable authority, and drawing inferences in the client’s favor when possible.
Even when the lawyer functions in their role as advocate, keep in mind that they must still adhere to ethical limitations. By way of non-exhaustive examples, lawyers cannot misrepresent facts to a court, assist a client in committing perjury, destroy relevant evidence, etc. Lawyers must also refrain from making frivolous or disingenuous arguments in court, and must ensure that there is a good faith basis for their client’s position, either rooted in existing law, or based upon a reasonable argument for a modification or extension of existing law. These limitations help preserve the integrity of our judicial system.
A good lawyer is not only a great advocate; they are also a great counselor. Remembering the distinction between these two roles can help clients appreciate the quality of their representation. Clients should understand the value of obtaining the lawyer’s honest opinion, rather than the lawyer telling the client what the client wants to hear.
The lawyers at Beresford Booth do not only advocate for their clients; they also provide sound independent judgment to their clients behind the scenes. Please contact Beresford Booth at info@beresfordlaw.com or by phone at (425) 776-4100.