January 23, 2005

Client and patient responsibilities

A post by Carolyn Elefant got me thinking about what kinds of responsibilities clients have to their lawyers. Are these anything like what patients owe to their physicians?

Elefant writes about Rompilla v. Beard, an ineffective-assistance-of-counsel case that was recently argued before the Supreme Court. Apparently, the inmate-client in the case is arguing that his lawyers didn't review the court files diligently enough to find evidence in the record of the client's low IQ, alcoholism, and troubled childhood that might have saved the client from the death penalty. The lawyers apparently claim that they asked the client directly whether he had any problems with alcohol, and the client said no.

Elefant writes:

A court ruling finding the attorney rendered ineffective assistance won't just impact criminal practice - but will affect how all of us deal with our clients. Essentially, such a ruling would require the court to find that we cannot take our clients at their word. Now sure, attorneys have an obligation to diligently investigate a client's case - but that's more to determine whether the case is feasible rather than to continuously question what our clients have told us. And when clients begin to realize that it doesn't matter what they say because attorneys can't take them at their word, the trust so integral to the attorney client relationship will diminish.

Do clients have any obligation to tell their lawyers the truth? A quick search of the ABA model rules of professional conduct turned up very little on the subject of client responsibilities in general, and nothing on any obligation of truthfulness.

In comparison, the AMA expects patients to tell their physicians the truth. Policy E-10.02 states that:

(1) Good communication is essential to a successful patient-physician relationship. To the extent possible, patients have a responsibility to be truthful and to express their concerns clearly to their physicians. (2) Patients have a responsibility to provide a complete medical history, to the extent possible, including information about past illnesses, medications, hospitalizations, family history of illness, and other matters relating to present health.
These patient responsibilities don't excuse the physician from her duty to seek out the information, but the idea is that the relationship between a professional and an autonomous client can only work if both parties act responsibly.

Surely this must be the same for the lawyer/client relationship, unless it's a whole lot more paternalistic than the ideal physician/patient relationship. To the extent that lawyers are expected to treat their clients as autonomous persons, the clients ought to shoulder their share of the burdens. Otherwise, attorneys might turn into babysitters, and clients into children. Elefant writes:

Moreover, I want to empower my clients, not coddle them. Clients deserve as much. So, I take my time to explain the applicable law, why my clients must provide me with certain pieces of information and why that information must be accurate. But if we send a signal to clients that their input doesn't matter, and if they don't provide it, then the attorney and not the client will pay the price, we encourage them to remain passive bystanders rather than active participants in the judicial process. And that makes us attorneys caretakers rather than advocates.

Posted by Carey at January 23, 2005 09:37 PM