The Pre-Employment Ethical Role of Lawyers: Are Lawyers Really Fiduciaries?

This Article considers the nature and extent of lawyers' obligations to prospective clients. Most jurisdictions have rules forbidding certain kinds of representation, requiring that particular information be given clients in writing, and regulating fees. Professional code drafters, courts, and commentators, however, have never addressed the broader issue of the lawyer's role at the retainer stage of representation, including whether lawyers have responsibility for providing prospective clients with candid advice regarding the course they should pursue. The issue is important to clients. A lawyer's action may determine whether a client obtains any representation, competent representation, or a lawyer well suited to the task. It also affects the client's consideration of alternatives-including alternative methods of resolving the legal matter and whether lower cost or specialized representation might be available. The issue is equally important to the bar. Most legal ethics codes free lawyers to compete for all types of legal work, regardless of how experienced or qualified they are. The fiction that lawyers are fungible, or (at some level) equally competent, underlies the current regime of lawyer regulation and is designed, at least in part, to protect the guild. Although legal ethics regulation places restrictions on how lawyers may solicit business, once a prospective client comes to a lawyer, virtually the only explicit constraint on the lawyer's ability to accept the case is that the lawyer provide minimally competent service. This Article argues that the professional regulatory scheme should clarify and facilitate enforcement of lawyers' preemployment obligations. Depending on one's view of existing law, this can be accomplished either through refined interpretation of the professional rules and common law standards or through amendments to the legal ethics codes. The Article then analyzes the significance of defining a lawyer's preemployment role for the legal ethics regime and external law regulating the bar. The Article concludes by offering options, some designed to enhance enforcement of lawyers' preemployment obligations and others that might serve as independent alternatives for achieving client protection.