2.1 Advisor

In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social, emotional and political factors, that may be relevant to the client’s situation.


COMMENT

Scope of Advice

[1] A client is entitled to straightforward advice expressing the lawyer’s honest assessment. Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront. In presenting advice, a lawyer endeavors to sustain the client’s morale and may put advice in as acceptable a form as honesty permits. However, a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.

[2] Advice couched in narrow legal terms may be of little value to a client, especially where practical considerations, such as cost or effects on other people, are predominant. Purely technical legal advice, therefore, can sometimes be inadequate. It is proper for a lawyer to refer to relevant moral and ethical considerations in giving advice. Although a lawyer is not a moral advisor as such, moral and ethical considerations impinge upon most legal questions and may decisively influence how the law will be applied.

[3] A client may expressly or impliedly ask the lawyer for purely technical advice. When such a request is made by a client experienced in legal matters, the lawyer may accept it at face value. When such a request is made by a client inexperienced in legal matters, however, the lawyer’s responsibility as advisor may include indicating that more may be involved than strictly legal considerations.

[4] Matters that go beyond strictly legal questions may also be in the domain of another profession. Family matters can involve problems within the professional competence of psychiatry, clinical psychology or social work; business matters can involve problems within the competence of the accounting profession or of financial specialists. Where consultation with a professional in another field is itself something a competent lawyer would recommend, the lawyer should make such a recommendation. At the same time, a lawyer’s advice at its best often consists of recommending a course of action in the face of conflicting recommendations of experts.

Offering Advice

[5] In general, a lawyer is not expected to give advice until asked by the client. However, when a lawyer knows that a client proposes a course of action that is likely to result in substantial adverse legal consequences to the client, the lawyer’s duty to the client under Rule 1.4 may require that the lawyer offer advice if the client’s course of action is related to the representation. Similarly, when a matter is likely to involve litigation, it may be necessary under Rule 1.4 to inform the client of forms of dispute resolution that might constitute reasonable alternatives to litigation. A lawyer ordinarily has no duty to initiate investigation of a client’s affairs or to give advice that the client has indicated is unwanted, but a lawyer may initiate advice to a client when doing so appears to be in the client’s interest.

[6] As noted in Rule 1.7 Comment [12] and Rule 1.8 Comment [17], Maine has not adopted the ABA Model Rules’ categorical prohibition on a lawyer forming a sexual relationship with an existing client. Such a rule is unnecessary to address true disciplinary problems and it threatens to make disciplinary issues out of conduct that ought not be a matter of attorney discipline. However, the lack of a categorical prohibition should not be construed as an implicit approval of such relationships, which may affect a lawyer’s ability to provide competent legal advice. Lawyers should bring a degree of objectivity with respect to their clients’ matters to the representation. A sexual relationship may adversely impact a lawyer’s ability to exercise independent judgment and render candid advice to a client.


REPORTER’S NOTES:

Model Rule 2.1 (2002) is a separate and independent articulation of the principle that a lawyer has an obligation to provide independent, candid advice to his/her clients. There is no direct analog under the Maine Bar Rules, although Rule 2.1 is generally consistent with current Maine practice. Rule 2.1 is also in accord with RESTATEMENT (THIRD) 94(3).

Model Rule 2.1 (2002) has received a fair amount of attention from commentators who have expressed a concern about factors that may influence a lawyer’s independence. Among the issues addressed include third party influences on a lawyer’s independent judgment, and the compromise of a lawyer’s independent judgment that may result from a lawyer/client sexual relationship. The Task Force recognized the importance of lawyers of caring about their clients and causes, but was mindful of the risk of a lawyer losing his or her objectivity.

Because Rule 2.1, in affirmatively recognizing the role of a lawyer as an independent and candid advisor, is in accord with Maine practice, the Task Force recommended that Model Rule 2.1 (2002) be adopted with minor modification as written.