Binder.clientBasedLawyering

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Chapter 1THE LEGAL AND NONLEGALDIMENSIONS OF A CLIENT'S

PROBLEM

John Crampton of Mid-Marine Insurance enthusiastically describes Mid-Marine's potential acquisition of Enterprises Inc., a small

aluminum manufacturer. Gary Swartz of the Crestwood Home Owners Association frantically wants to enjoin a Crestwood property ownerwho, despite deed restrictions, wants to split his lot. Alex Combs sadlywonders how his arrest for burglary will affect his job and children.Louise Harris, manager of Blake County Water District, discusses theDistrict's need to raise capital through a new bond issue. Marlene Foxexcitedly describes a new record deal that Columbia wants her to sign.Phil Bondchefski, the CEO of Apex Steel, is furious that Apex has beensued for price flxing. Arlene Wagner, executive director of the localNAACP chapter, is concerned about renewing the chapter's lease.Helen Reston angrily relates that she was fired for reporting thecompany's practice of overcharging on government contracts andwants to sue her former employer for compensatory and punitivedamages. Charles Winnegar quietly states that he wants to make awill leaving nothing to his son. Grace Parker dispassionately expresses her desire to sell her $750,000 lakeside vacation house withoutcapital gains liability.

1. INTRODUCTIONClients come to lawyers seeking help in solving problems. And as

the opening examples suggest, the range of people and problems thatlawyers encounter is enormous. The array embraces differences insize, complexity, emotional content and legal status.1 Some problems

1. By size, lawyers typically mean theamount at stake. Cf. M. Galanter, "MegaLaw & Mega-Lawyering in the Contemporary United States," in The Sociology ofthe Professions, 156--57 (1983). Complexi-2

ty, on the other hand, usually has no singlemeaning. Cases are seen as factually, procedurally and/or legally complex. Factualcomplexity typically refers to the amountof investigation involved. See J . Freund,


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Ch. 1 LEGAL & NONLEGAL DIMENSIONS 3involve disputes over past events and others focus on planning for thefuture.

But no matter who the client, what the substantive legal issues orwhether the situation involves litigation or planning, your principalrole as lawyer will almost always be the same-to help clients achieveeffective solutions to their problems. The process by which you facilitate the resolution of client problems-that is, the process of counseling-is the subject of this book.

Although law school perhaps gives a contrary impression, identifying and helping clients resolve problems requires more than knowledgeof relevant legal principles.2 You also need to know about clients'individual circumstances i f you are to help them shape satisfactorysolutions.3 Thus, two clients may have the same "legal" problem, but asolution that satisfies one may be unthinkable to the other. Accordingly, effective counseling demands understanding of how each client'sunique goals and needs intertwine with legal issues.

Achieving this understanding requires that you acquire knowledgein at least two broad areas not directly linked with legal principles.Skilled lawyers' knowledge in each of these areas helps demonstratewhy the practice of law requires much more than knowledge of the law.The first area concerns the context(s) in which clients' problems

are embedded. Helping fashion solutions to problems involving surgical malpractice requires knowing something about medical diagnostictechniques, surgical procedures, and hospital practices. Similarly, i f aclient's proposed business venture concerns marketing a new softwareprogram, you probably need some knowledge of software products,marketing practices and venture capital. This first "extralegal" area,"Handling Clients." 6 Legal Econ. 32, 34(Oct. 1980). Procedural complexity typically refers to the necessity to comply with ahost of rules. When terming a case legallycomplex, lawyers use different criteria.Sometimes legal complexity encompassesthe notion that the subject matter is in tellectually demanding. (For a discussion ofthe substantive subject areas lawyers inthe Chicago, lllinois area perceive as intellectually demanding, see E. Laumann & J .Heinz, "Specialization and Prestige in theLegal Profession: The Structure of Deference," 1977 Am.B.Found.Res.J . 155, 166-68). Or, the term may mean that thematter involves legal issues for which thesubstantive law is unclear or in a state ofcontinual nux, (see Id.) or needs to be modified or perhaps even reversed in order toprotect the client. Or, legal complexitymay mean that the substantive law involves a number of rules that are unfamilia r to al l but those who are specialists inthe particu lar substantive area. For example, even lawyers who have some expe-

rience in areas such as securities fraud,anti-trust or murder prosecutions, mightwell describe such areas as complex be-cause of the number of rules with whichone must be familiar in order to handlesuch cases.

2. Arguably, the typical law schoolcasebook substantially contributes to theerroneous impression that solving clients'problems begins and ends with an abilityto apply a proper legal rule. The usualappellate case begins with a short summary of facts, and then immediately launchesinto a statement such as , "The first issuewe must decide is " Such statements may accurately describe a problemas it appears to appellate courts; law students and new attorneys can therefore beexcused for characterizing clients' problems in the same manner.

3. See C. Peck, "A New Tort LiabilityFor Lack of Informed Consent in LegalMatters," 44 La .L.Rev. 1289, 1301 09841.


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4 CLIENT-CENTERED COUNSELING Pt. 1then, is principally content-based; it s focus is "industry knowledge"that you either have or will need to acquire.4

This book does not purport to define the "industry knowledge" thatyou will need in every situation, or indeed even in "typical" situations.However, by using examples that cover a broad range of legal andfactual settings, in the contexts of both litigation and planning, thebook does attempt to illustrate how contextual knowledge typicallybears on the counseling process. "Industry" data, as you will see, bothidentifies subjects requiring investigation, and helps you create andexplore potential solutions tailored to each client's individual needs andobjectives.

The second extralegal area focuses more on process than content.Clients come to you with differing degrees of knowledge, emotion andsophistication. Some you will know personally; others will be strangers. Some will readily make decisions; others will be in a continuousquandary. Accordingly, for legal principle and contextual knowledgeto lead to effective solutions, you need understanding and skills in avariety of interpersonal spheres including interviewing, counseling andnegotiation.

This book focuses on this second extralegal area-the personalinteraction between lawyer and client. It primarily explores theprocesses of interviewing and counseling. The book attempts to providea general approach to interviewing and counseling and an array ofskills that you can employ when talking to clients.

Effective interviewing and counseling is broadly seen as having twocomponents: understanding and action.6 The first component involvesbeing receptive and responsive to clients by listening to their problemsand concerns with sensitivity, warmth and understanding. The secondcomponent complements this responsiveness with action-oriented activities, such as identifying problems, gathering information and structuring the decision-making process. While these two components mayseem quite independent of each other, they become fused and highlyinterrelated when counselor and client successfully interact.

In earlier times, the nearly universal view was that good interviewers and counselors were "born and not made." 6 However, substantialevidence now indicates that communication skills can be learned, andthat even those thought of as "born interviewers" benefit from variousopportunities to observe, practice and receive corrective feedback.7 Ofcourse, like recipes for Thousand Island salad dressing, no two clientsor problems are precisely alike. Moreover, lawyers are no less uniquethan clients in behavior, idiosyncrasies and attitudes. Nevertheless,

4. For discussion of using "industryknowledge," see Chapter 9, sec. 5; Chapter18, sec. 2.5. See R. Carkhu ff, Helping andHuman Relations 35 (1969).

6. L. Cormier, W. Cormier & R. Weisser, Interviewing and Helping Skills forHealth Professionals 3 (1984).7. See G. Goodman, The Talk Book 303(1988).


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Ch. 1 LEGAL & NONLEGAL DIMENSIONS 5general skills and techniques exist which you can employ in counselingclients who are very different from each other.

With practice, the principles and skills explored in this book shouldenable you to establish professional attorney-client relationships; tomotivate clients to reveal salient legal and nonlegal information; tohelp clients feel personally comfortable; and to encourage them tomake choices among alternatives that best achieve their individualneeds.

2. CLIENTS' TYPICAL NONLEGAL CONCERNSAs suggested above, lawyers' principal societal role is to helpclients resolve problems, not merely to identify and apply legal rules.Nonetheless, too often lawyers conceive of clients' problems as thoughlegal issues are at the problems' center, much as Ptolemy viewed theSolar System as though the Earth were at the center of the universe.8

But legal issues may be no more the essence of a client's problem than,perhaps, religion might be its essence i f a troubled client chose to talkto a minister rather than to you, a lawyer. Whatever the legal aspectsof a problem, nonlegal aspects frequently are at the heart of a client'sconcerns. Effective counseling inevitably requires that you elicit information about these nonlegal aspects and factor them into a problem'sresolution.

Because legal writing's proclivity to see problems through courts'eyes overlooks problems' nonlegal dimensions,9 we illustrate the ubiquitousness of nonlegal concerns through three short hypotheticals. Asyou read through them, please think about the types of nonlegalconcerns that clients are likely to have; why those concerns areinevitably present; and why the nonlegal aspects of problems so frequently create difficulty for clients. Also, please consider how awareness of the nonlegal aspects of problems might alter your analysis ofwhat a client's problem consists of and how you might assist the clientto resolve it.

* When Phil Kretsky got off the elevator, he was immediately struckby the stereotypical law firm look. Large bronze letters on the woodpaneled wall spelled out the firm name. The reception area was large,expensively furnished, nicely pictured and virtually unpeopled. Only

the receptionist in her tailored dark blue suit prevented the space frombeing completely uninhabited. Kretsky gave his name and was told, aswas common, that someone would be out in a moment to take him toMr. Kamp's office.8. For a reminder of Ptolemy's viewssee 0. Neugebauer, A History of AncientMathematical Astronomy (1975); R.Newton, The Origins of Ptolemy's Astro-nomical Parameters (1982).

9. For a refreshing exception see J. Collins, "Improving the Relationship BetweenLawyers and Business Clients," 20 Am.Bus.L.J. 525, 530 (1983).


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6 CLIENT-CENTERED COUNSELING Pt. 1As soon as Kretsky entered, Kamp rose to greet him. "Mr.

Kretsky; Bob Kamp. Pleased to meet you; why don't we sit over here.I find the formality of a desk often interferes." Kamp beckoned towhat might best be described as a small living room set-up near thesouth wall. Kretsky took the club chair and Kamp opted for the sofa atKretsky's right.

There was then some chitchat about the weather and some inquiryinto the difficulty of fmding parking. When this concluded, Kampbegan: "Maybe the easiest way to start is for you to explain how I canhelp you." What Kretsky thought and said were quite different. Inhis mind, the response was quite straightforward:

"You can help by drawing and negotiating a lease which sticks to thebasic terms we've already worked out with Midland. You can help byletting me worry about the economics of the deal and not insisting thatevery conceivable contingency known to the legal mind be covered inthe lease. You can get this done quickly so we can start moving ourupholstery operation into the building by the end of next month and soI can report to next month's Board meeting that the deal has beenconcluded. By the way, make sure that Midland does deliver possession by that date; the old tenant isn't out yet. Finally, you can helpby keeping the fees reasonable so that the Board does not complainabout my using outside counsel."

In words, however, the reply was much less direct: ' 'I 'd like you to helpus with a lease deal for some new factory space."

For three quarters of an hour, Joyce Cappetta sat in the receptionarea. Normally, the wait would have angered her considerably. As alitigator with 10 years' experience and a partner, she was not used tosuch treatment. However, if Weldon Frazer wanted her to wait, she'dwait. Yesterday afternoon she had received a telephone call fromFrazer's secretary. Frazer was president of West Coast Timber; thesecretary had asked i f Cappetta could meet with Frazer at his officesharply at 3:00p.m. today. Of course, the answer was yes; West Coasthad paid the firm almost $400,000 in fees last year, and if Frazerwanted a meeting at 3:00, Cappetta could certainly rearrange hercalendar.

As she waited, Cappetta kept speculating about why Frazer hadasked for her personally. There were two partners in the corporatedepartment who dealt directly with Frazer and each was senior to her.Moreover, the work she did for West Coast was but glorified collectionwork that took place under the rubric of construction industry litigation. Cappetta received her cases from Dave Moore, the credit manager, and she had never had any contact with Frazer or any othercorporate officer.

When she was fmally ushered into Frazer's office, Frazer beganimmediately. "Ms. Cappetta, nice to see you; I've heard a lot of goodthings about your work for us. Won't you have a seat?" The chair to


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Cb. 1 LEGAL & NONLEGAL DIMENSIONS 7which Frazer motioned was one of two upholstered arm chairs that satdirectly in front of the almost barren rosewood table which Frazerapparently used as a desk. Frazer's back was to the window and theglare from the window made i t hard to see his face.

Before she had time to respond, take in her surroundings, orexpress any thoughts, Frazer got to what Cappetta presumed was thepoint. "I understand you're handling a couple of lien claims againstHolly Building Supplies where Regency Homes is the general?" WhenCappetta nodded her affirmance, Frazer continued: "From what DaveMoore tells me, the real problem is Regency. Building suppliers besideHolly are now falling substantially behind on six other Regencyprojects, and potentially we could be talking about losses in excess of$750,000. What I'd like your thoughts on is whether law suits andliens on these six other projects make sense or whether we should betalking about some other approach. Also, I'd like your frank opinionon how carefully you think Moore is monitoring the accounts. As youprobably know, our sales people are always complaining that Moore istoo tight on his credit limits, but I'd like your views. We've got to keepselling; without sales we're not going anywhere. On the other hand,we've got to maintain some control over the amount of credit we letthese suppliers have. You've worked on the Holly matters and severalothers, so your thoughts about how closely Moore monitors our accounts is important to me. I want to know whether, in your judgment,Moore is becoming too solicitous toward the sales department and hasbecome too liberal in giving credit. Also I need your ideas aboutwhether litigation is the best course at this time on each of the Regencymatters."

Mrs. Howard arrived on time, gave her name to the receptionistand took a seat in the waiting room. Before she had done much more

than pick up a magazine, she heard her name, and Ms. Spriggs wasintroducing herself: "Mrs. Howard, I'm Elizabeth Spriggs; won't youcome in?"As the women entered the twelfth floor office, Ms. Spriggs suggested that the older woman would be comfortable in the rather straightbacked chair that stood in front of a large oak desk. Ms. Spriggs thenmoved to the high back leather swivel-chair that clearly belonged to the

desk's proprietor. Seated and secure, Ms. Spriggs began. "Mrs. Howard, how might I help you?"Although she was expecting a question of this sort, the olderwoman hesitated as she thought:"How can I be helped? What help is there for a 47-year-old womanwhose husband has announced that after 19 years of marriage he isleaving to share an apartment with his 28-year-old lover? Sure there


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8 CLIENT-CENTERED COUNSELING Pt. 1tion? Will they help me find my way as a single person? How canthis lawyer help? " Many lawyers (perhaps Ptolemeians) would tend to say that Kretsky, Frazer and Howard, have a lease problem, a collection problem anda dissolution problem respectively.10 However, as each story suggests,

the unsettled matters people bring to lawyers raise many questions inaddition to prist ine legal ones. Business people such as Kretsky are notworried merely about what provisions must be included in a lease tomake it "legal". Kretsky's overriding concern is to conclude the deal ina way that allows the company's upholstery operations to go forward ina timely manner. As a result, he appears willing to forgo some legalprotections in order to make the deal. He wants to keep down costsand conclude the lease so that he can move on to other affairs of thebusiness.

Nonlegal concerns are as prevalent in litigation as they are inplanning matters such as Kretsky's. Corporate officers such as Frazerare not concerned merely with the corporation's rights in potentiallawsuits. Frazer, like many potential litigants, wonders whether itmakes sense to sue. This arguably legal concern is enmeshed withbroader business worries. Frazer is also uneasy about West Coast'scredit practices and the adequacy of the company's credit manager.Individual clients as well face a host of nonlegal concerns. Think backto Mrs. Howard. What nonlegal concerns is she likely to have?

As the three hypotheticals illustrate, nonlegal ramifications typically are economic, social and psychological in nature. Often there alsowill be moral, religious and/ or political consequences. Consider, there-fore, what each of these varying consequences entails.

Economic Consequences: Economic ramifications are the monetaryeffects of a course of action. Almost every action will produce someeconomic ramifications. Legal fees, damages and time spent preparingto testify are typical economic ramifications of litigation. In planningmatters, typical economic consequences include time spent in preparingfor negotiation, legal fees and implementing the selected course ofaction. For example, Kretsky's company surely will be economicallyaffected by the amount of rent, taxes, and maintenance costs the leaserequires it to pay.

Social Consequences: Social ramifications are those that affect aclient's relations with others. The situations of Kretsky, Frazer andHoward all demonstrate this kind of consequence. Kretsky's actionswill influence his company's future relationships with the prospectivelandlord and Kretsky's future relationship with the board of directors. 11

10. Lawyers, whether litigators or planners, tend to think of themselves as handling matters that fall into various substantive law categories. For lists of thecommon substantive subject areas thatlawyers use in describing their work, see

Laumann & Heinz, supra note 1; J. Carlin,Lawyers On Their Own 41 - 122 (1962).11. An attorney representing a corporation is likely to find the situation fraughtwith conflicts of interest. EC 5-18 of theModel Code states that corporate counsel


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Ch. 1 LEGAL & NONLEGAL DIMENSIONS 9Frazer's action, too, will impact on numerous relationships includingMoore, West Coast's board of directors and people in the sales department. Finally, Mrs. Howard's choice will influence her future relationswith her spouse, her children and her friends.

Psychological Consequences: Psychological ramifications are theinternal personal feelings that clients experience as the result of thechoices they make. For example, some litigation clients feel cowardlyand cheated when they give up certain claims as part of a settlement.Other clients feel anxious as long as a case remains unresolved.Similarly, some business clients are elated if their economic powerproduces a fmal deal in which the price is better than the market price.Others are happiest when a final agreement benefits both partieseconomically.12

Moral, Political and Religious Consequences: 13 Actions may createresults or reactions that implicate clients' moral, political and/or religious values. That is, choices often arouse feelings based on clients'underlying personal values. For example a landlord's decision not toevict a tenant during December may emanate from the landlord's beliefthat people should not be made homeless during the holiday season.

Moral, political and/or religious values are often intertwined withone or more other nonlegal concerns. It is probably rare that a clientmakes a moral, political and/or religious decision that is devoid ofeconomic, social and/or psychological overtones. For example, if aclient is considering whether to leave the bulk of his estate to a son whohas repeatedly squandered money, economic considerations might leadthe client to disinherit the son. However, if the client's moral value isthat blood ties outweigh all other considerations, the client may feelmorally obligated to leave his estate to his son."owes his allegiance to the entity and notto a stockholder, director, officer, employee, representative, or other person connected with the entity." However, several authorities have come to differentconclusions. Some assert that the corporation is composed of its stockholders andthey are therefore the client. E. Sloter &A. Sorenson, "Corporate Legal Ethics-AnEmpirical Study: The Model Rules, theCode or Professional Responsibility andCounsel's Continuing Struggle BetweenTheory and Practice," 8 J. of Corp.Law601, 632 (1983), relying on Garner v.Wolfinbarger, 430 F.2d 1093 (5th Cir.l970)and SEC v. National Stucknt MarketingCorp., 457 F .Supp. 682 (D.D.C.1978).Others suggest that the client is the boardof directors. S. Lorne, "The Corporate andSecurities Advisor, the Public Interest, andProfessional Ethics," 76 Mich.L.Rev. 425,436 (1978). Still others feel that management is the client. M. Riger, "The Lawyer-Director-'A Vexing Problem,''' 33

Bmder Bergman & Pnce. lwyrs Coun ACS. 2

Bus.Law 2381, 2384 (1978); accord City o fPhiladelphia v. Westinghouse Elec. Corp.,210 F.Supp. 483, 485 (E.D.Pa.l962). Astudy by Sloter and Sorenson found that41% of the attorneys surveyed felt thatmanagement was the real client of theattorney. Sloter & Sorenson, supra, at712. For an excellent review of the conflicts of interes t that arise when representinK corporate clients, see W. Sogg & M.Solomon, "The Changing Hole of the Attorney with Respect to the Corporation," 35Cleve.St.L.Rev. 147, 154 (1986-87).

12. The categories of economic, socialand psychological are certainly not watertight. I f a client believes that a decisionwill cause a relative to think poorly of himor her, is the ramification social, psych-logical or both?

13. Special thanks to Carrie MenkelMeadow, who has continually stressed theimportance of including these factors inthe analysis of clients' problems.


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10 CLIENT-CENTERED COUNSELING

3. ALL SOLUTIONS PRODUCE NONLEGALCONSEQUENCES

Pt. 1

Had Sir Isaac Newton gone to law school, his Third Law mighthave been, "For every solution, there are both legal and nonlegalconsequences." Thus, you must help clients craft solutions that respond to both types of consequences. 14 At worst, failure to do so mayleave a client worse off than before she or he sought your advice. Atbest, your oversight will leave a problem only partially resolved.

For example, assume that in West Coast Timber's matter, Cappettadevises a brilliant legal theory which gives West Coast claims againstthe other building suppliers who have fallen behind on the Regencyprojects. Based on this theory, Cappetta advises Frazer to sue each ofthese suppliers. West Coast ultimately prevails, but (a) can onlypartially recover its losses; (b) incurs substantial legal fees; (c) alienates other building suppliers who are West Coast customers; and (d)incurs "opportunity costs" because West Coast employees devoted significant time and energy to the lawsuit instead of to other businessaffairs. Cappetta's advice may have been "legally sound," but it hasarguably left West Coast in a worse position than when it started. HadCappetta and Frazer thought through the potential nonlegal ramifications before West Coast instituted suit, West Coast might have avoidedat least some of these adverse consequences.

4. THE PROMINENCE OF NONLEGALDIMENSIONSYour intuitive sense may lead you to readily agree that problems

have nonlegal dimensions. What may surprise you, however, is thenotion that nonlegal concerns often outweigh legal ones in a client'scalculus of what solution to adopt. For example, Frazer might chooseto forgo litigation in order for West Coast to maintain good relationswith its other building supply customers. Similarly, Mrs. Howard'sdecision to press all possible property claims might grow primarily outof her desire to punish a husband who she thinks has treated her andthe children unfairly. Finally, Kretsky might forgo negotiating forprovisions such as an option to renew the lease in order to conclude thedeal quickly.

In the next subsections, examine the reasons that nonlegal concerns often predominate in clients' thinking.14. Sometimes. legal and nonlegal consequences ar e virtually indistinguishable.For example, you mjght view the possibili-

ty of a client's recovering damages eitheras a legal or nonlegal economic consequence of ftling suit.

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