Lawyers must walk an ethical tightrope with every new client, writes Michael Perkins, and it's time the profession recognised the need for socially responsible lawyering
As lawyers, we are all too ready to sell our service or solution to the client. In the family practice and wealth management practice areas, we need to recognise that we are agents for change in the life of our clients not just the provider of service results.
Each day, with each new client brief, lawyers must walk an ethical tightrope when engaging with their clients.
Both commercial interests and private clients seek to engage with social and community issues as they operate their affairs. While many clients are self directed in their activities, increasingly they are seeking help from their professional advisers as they seek to satisfy their social contribution objectives.
The pursuit of social contribution is often triggered by a significant life event for a client such as:
- Experiencing a natural disaster such as drought or fire
- The tragic loss of a loved one
- The receipt of an inheritance or a windfall
- A commercial or investment sale that creates substantial gains
- Caring for a disabled family member
- Pursuing social contribution as an occupation post retirement
Social contribution advice is not an area of work for all lawyers. Indeed, without an appropriate professional relationship already in place, some lawyers may never be asked to assist their clients with this work.
In responding to these client objectives, lawyers need to establish whether the priority of their client is in making their contribution during their life, after their death or a combination of both. Ideally, each of these choices needs to be evaluated with the client.
Clients look beyond technical ability
How lawyers present themselves to clients will usually determine how a client perceives the value that lawyer can offer. There is no single ethical model of legal practice.
A recognised breakdown of the ethical modalities of legal practice is:
- An adversarial advocate. The advocate of the client's interest above all else other than the duty to the court and rule of law
- A "responsible" lawyer. This person shows autonomy from clients and private interests to provide impartial representation. This practitioner places the rule of law as the lodestone to which the client's affairs must respond
- A moral activist. Promoting social and political justice
- A relational lawyer. Taking responsibility for people, communities and relationships. Relational lawyers are characterised by serving the best interests of clients and others in a holistic way that incorporates moral, emotional and relational dimensions of a problem into legal solutions.
Lawyers need to reflect on how these methods of practice apply to themselves. In my experience, lawyers are most effective when their personal values and their ethical model of practice coincide.
Where clients are seeking to implement or change their social contribution strategies, it is lawyers at the moral activist or relational lawyer end of the spectrum who are most successful in attracting and holding this work.
Law firms who want to grow the socially responsive dimension of their practice need to consider how they ensure the right type of lawyers are engaged to this practice. Being a big biller or a great networker will not generally be enough. Clients will normally want to work with the lawyer with whom they feel the greatest empathy; technical ability comes second.
What is the client really asking for?
In our engagement with clients we must identify ourselves as advisers and listeners, not just technical service providers. Our primary role in this work is to help clients evaluate relevant choices for the management of their affairs that can achieve the objective set out.
Client needs can normally be satisfied when lawyers, as appropriate to the engagement:
1. Assist with analysis and interpretation of legal and factual issues;
2. Assist with the enforcement of legal rights and obligations;
3. Assist with the authentication and assurance of title to property of any type; and
4. Assist with the planning and management of a client's legal affairs.
Client objectives, however, also need to be understood. In estates practice these can normally be classified as:
1. Personal and Family Representation and Succession
2. Family Continuity, Governance and Legacy
3. Wealth Preservation, Enhancement and Transfer
4. Business Ownership Operation Succession and Control
5. Financial Security and Legal Compliance
Socially responsive lawyers need to be active listeners if they are to pick up the underlying message from their client about their objectives as well as their needs. Once their objectives are understood, the services that assist in achieving them can be identified. This may include some or all of the following:
1. Give advice - the function of being an authoritative source of legal knowledge; the interpretation and application of laws and legal principles;
2. Perform transactions - the function of authentication and assurance of title to property of any type;
3. Carry out representation - the function of representing the rights and interests of clients, particularly in situations of conflict;
4. Design - the function of planning, designing and documenting structures, strategies and arrangements which regulate legal rights between parties.
A revised language of engagement
An existing client calls you and says she has just received an inheritance of $1 million from her great aunt and asks if she can come in and talk about this event and how she should manage it. The client says her aunt was a supporter of a charity for many years and wants to do the right thing by herself, her family and also continue the good name of her great aunt.
First Considerations - the ethical balance beam:
- Who is my client?
- Who else will be affected buy this work?
- Am I the best person to help with this matter?
- Why is the client asking me for help?
- What does the client want to achieve?
- Can I, or my firm, deliver what this client needs?
- To whom is the client accountable? Why?
Because this is your largest commercial client who spends $100,000 per year in fees and with whom you have a great working relationship, you agree to the meeting.
You bring into the meeting Guy Green, a lawyer who is a trust and estate specialist and a member of the Society of Trust and Estate Practitioners (STEP).
Guy outlines the key choices the client has about lifetime and bequest-based giving. He also explains she can use her business interests to assist in furthering her community work as part of its sustainability strategy and community brand-building objectives. The client agrees to a combination of lifetime and post-death gifting strategies involving both herself and her business.
Leadership of a client is a valuable professional asset. The professional closest to the client should retain that role and build on the relationship capital with the client by drawing into the engagement further specialists with the technical skills to assist.
It is the combination of both these skill-sets that creates the most value for clients.