Judgment often depends on the circumstances
By Diane Karpman
Independent judgment is the most ethereal of all the fiduciary duties a lawyer
owes to a client. It seems to have been lurking in the shadows of the better-known
duties (confidentiality, loyalty, safekeeping of property and funds, and communication).
Diminished or impaired independent judgment is often the end product of a conflict
of interest or adverse interest. Although there are numerous reported cases
involving competing interests, very little is written about independent judgment.
Controversy about independent judgment plagues all areas of law practice. In
insurance defense, is the independent judgment of lawyers impaired because they
are employed as staff or in-house, at a captive firm, or have a long-standing
relationship with the carrier? Does in-house counsel's interest in continued
employment with the corporation color the ad-vice they give to the board? In
estate planning, if the attorney sells annuities to the client, is it personal
financial incentive or the needs of the client that is driving the sale? These
are hard questions and variations exist in almost all areas of practice. Unfortunately,
the answer sort of depends on the circumstances.
"Financial ties, personal allegiances, and obligations to third parties can
jeopardize any lawyer's capacity to make disinterested decisions and offer sound
professional advice. . . ." (Ted Schneyer, Multidisciplinary Practice, Professional
Regulation and the Anti-Interference Principle in Legal Ethics (June 2000) 84
Minn. L.Rev. 1469, 1492). Clients are entitled to lawyers who remain neutral
and objective, and like all other ethics issues, independent judgment is not
Some degree of interference with independent judgment is tolerated. Lawyers
work to get paid. Otherwise, we would be lollygagging all the time. Yet that
goal is so pervasive in all of us that it is not considered an impermissible
interference with independent judgment.
Lawyers also must remain emotionally independent in order to remain detached
in giving counsel. Reconciling the need for objectivity with being a zealous
champion is one of the most difficult obligations in the profession and creates
constant tension. Outstanding lawyers have been known to cross that line when
they identify personally with the clients' cause. They sometimes think that
they know what is best and there- fore deny their clients the opportunity to
make decisions regarding the litigation/transaction, such as when to settle
the case. Yet, there is always a flip side. Too much neutrality leads to client
complaints that their lawyers are too remote or distant. The duty of independent
judgment can be compromised where lawyers are too invested in their client's
case or business, or in their own employment.
Different circumstances can change everything. For example, in the search for
weapons of mass destruction in Iraq, a vial of live botulinum was discovered
in the home of a scientist. In Baghdad, that vial could have been made into
a powerful biologic weapon. In Beverly Hills, it could be made into Botox. It
just depends on the circumstances.
Ethics expert Diane Karpman can be reached at email@example.com.