More Than Lawyers: The Legal and Ethical Implications of Counseling Clients on Nonlegal Considerations

Abstract

Lawyers must often be more than lawyers. As they have for centuries, lawyers face clients’ family problems, business problems, and life problems, which lead lawyers at times to go beyond the legal issues and counsel clients on the moral, economic, and other nonlegal factors affecting their situations. Furthermore, the practice of law today is becoming more competitive, complex, and intertwined with other substantive disciplines, causing lawyers to be increasingly called upon to advise clients on issues that would not be deemed purely legal by traditional standards. The ABA Model Rules of Professional Conduct contemplate these considerations to some extent, and the literature has extensively argued that attorneys should engage in nonlegal, particularly moral, counseling. Yet what remains unresolved is an understanding of what parameters the legal and professional responsibility standards place on such counseling. Even if one agrees that nonlegal counseling should be encouraged, it remains unsettled whether the standards actually require attorneys to do so in certain cases and whether attorneys’ fiduciary obligations to their clients may be affected by such counseling.

This Article addresses these legal and ethical issues regarding attorneys’ ability to engage in nonlegal counseling by analyzing the primary professional standard that expressly authorizes such conduct, Model Rule 2.1, concluding that, although attorneys should engage in such counseling, they must be especially mindful of several specific professional standards to ensure that their nonlegal counseling does not conflict with the other professional duties attorneys owe to clients.

Keywords: nonlegal, moral, counseling, ethical, professional responsibility, clients, legal ethics

JEL Classification: K1, K10, K19, K3, K30, K39, K40, K41, K42, K49