If your lawyer disagrees with you – who wins?

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Client Autonomy in Decision Making: Balancing Legal Ethics and Client Desires

If you believe you are adequately informed you can direct the lawyer to take action in accordance with your wishes even if your lawyer is advising against it. This is provided the action is neither unethical or illegal. This scenario arises in the estate planning context, to give an example, when a client insist on a “simple” will, but the attorney is of the professional opinion that a revocable living trust with a pour-over will would serve the client’s interests much better. The lawyer will obtain the client’s written informed consent and proceed according to the client’s instructions.

If the client insists, the attorney may even undertake an action that may be legally ineffective, for example, because it is unenforceable. Here the lawyer must inform the client of the risk involved and may refuse the request if honoring it would violate the duty of competence under the ethics rules.

Termination of Legal Representation

However, an attorney is not obligated to work with a client who continuously acts against their professional judgment making the representation unreasonably difficult. The attorney may terminate the representation if “the client by other conduct renders it unreasonably difficult for the lawyer to carry out the representation effectively.” CA Rules of Professional Conduct Rule 1.16 Declining or Terminating Representation

Reference

Shaver, TW (2020). Guide to the California rules of professional conduct for estate planning, trust and probate counsel. [San Francisco, CA], California Lawyer’s Association, Trusts and Estates Section. Chapter 3 Competence and Diligence

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