Judgment often depends on the circumstances

By Diane Karpman

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 easily quantifiable.

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 karpethics@aol.com.