Counseling Organizational Clients “Within the Bounds of the Law”

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The principal function of lawyers is to communicate the lawyer’s knowledge of law to the client and apply it to the client’s situation. Thus, every lawyer who has clients, whatever else they do, is a counselor. Two professional rules deal directly with counseling: Model Rule 1.2 deals with scope of representation, allocation of authority between lawyer and client, and prohibits a lawyer from counseling a client “to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent . . . .” Model Rule 2.1 requires a lawyer to “render candid advice” in the exercise of the lawyer’s “independent professional judgment.” That means, I believe, that the lawyer should level with the client by communicating the law in all its sometimes certainty and often ambiguity to the client, thus helping the client to act in a way that is most likely to achieve the client’s objectives; in short, to help the client understand the law as it is and how it provides for or restricts the client’s options for action.

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