Archive for Wednesday, November 17, 1999


November 17, 1999


I am often asked what qualities a potential client should seek in a lawyer. My usual answer is that one should always seek a lawyer with expertise and experience. Even relatively simple cases may take a wrong turn or become complicated, and it is always better to have a lawyer with the expertise to cope with difficult as well as simple matters.

I advise finding a lawyer with experience for two reasons. First, experience leads to expertise. When one has solved a problem before, solving a similar problem will be easier. Second, since most lawyers charge for the time required to do a task, a lawyer with expertise and experience is likely to take less time to handle a matter and, therefore, the matter may well cost less.

But in addition to expertise and experience there is a third quality that one should always look for in choosing a lawyer. That quality is the most difficult to find and -- when found -- identify, but it is also in many ways, the most important. It is wisdom.

Most of the time, people seek lawyers because they have problems. The whole point of retaining a lawyer is to find someone who can resolve one's problem in an advantageous way. Often the person seeking a lawyer's help may be highly stressed or angry, and the anger or stress may render the person less able to make good judgements.

"The Model Rules of Professional Responsibility,| the rules adopted in most states, including Kansas, which regulate lawyer behavior split responsibility between the client and the lawyer. The client is the one who is charged with setting the purpose and end to be achieved from any transaction or case. The lawyer is charged with deciding "tactical" questions that might arise in the course of the representation. The problem, however, is that it is often very difficult to distinguish between the two. Further, the considerations that must enter into making these decisions may well extend far beyond issues of law.

Last week, Professor William Hodes of the Indiana University Law School gave the first Waldron-Foster Lecture in Legal Ethics at the KU Law School. In his lecture he discussed the role of the lawyer as adviser to his client. He did so by posing a series of hypothetical problems.

Take the following example. A man and a woman are having marital problems and decide to seek a divorce. One of the most contentious issues in the case is the question of who will have custody of their 8-year-old daughter. The husband is claiming that his wife is unfit to have custody because she has a drinking problem. The question is whether the young daughter should be asked to testify and, if asked to do so, how aggressive the lawyer should be in questioning the young child. The husband's lawyer knows that he can put the young child on the stand and he knows, as well, that he has the ability to question her so aggressively that she will "break down" and tell all about her mother's drinking. The lawyer also knows that such an approach could be highly traumatic for the young girl and might well have lasting negative psychological effects.

Model Rule 2.1 states that a lawyer has the right to advise his client not only on the law, but on moral, social, and other issues that might arise in the course of representing a client. Thus, under Rule 2.1 the lawyer, in the situation here has the obligation to tell his client that aggressive questioning of the young girl is possible and may have certain tactical benefits. But, he also has the right to tell his client that he feels such a course of questioning would harm the child and would be morally incorrect. Model Rule 2.1 does not require the lawyer to give this advice, but it permits him to do so.

It is in precisely this type of situation that Professor Hodes (and I agree with him) believes that a lawyer should counsel his client on moral and other non-legal matters. Even if it is not a requirement under Model Rule 2.1, it is a moral imperative according to most people's moral beliefs. A lawyer should advise a client of the human consequences of such an action, of the possible harm to the child, and of alternative approaches. A lawyer should be the voice of reason and wisdom, not simply a foot soldier carrying out his client's orders.

If, in this example, the lawyer counsels against the contemplated course of action on moral grounds but the client insists that the child be called as a witness and be questioned aggressively, the lawyer has options. He may accede to the client's wishes or he may withdraw.

When fear or anger or stress may cloud a client's judgment, it is especially important that a lawyer possess wisdom. The ability to counsel one's client about all the ramifications of an action is not rooted in expertise or even solely in experience. Rather it comes from deep inside and is a product of one's life and values. For the lawyer to provide the fullest advice for his client as permitted by Model Rule 2.1 the lawyer must not only have technical expertise and experience but the human wisdom that makes that expertise and experience so much more valuable.

So, next time you need to hire a lawyer don't stop at asking where she went to school and how many cases she has tried. Spend some time getting to know what kind of person she is and whether you feel comfortable that she also is wise.

-- Mike Hoeflich is dean of the Kansas University School of Law.

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