The practice of law is a profession, but it is also a customer service industry. Lawyers and law firms often need a consistent influx of clients, or successful retention of repeat clients, in order to stay in business.

Developing a successful practice requires both attracting and keeping clients. Some lawyers struggle with how to share the good, the bad and the ugly with their clients. They may be tempted to counsel their clients in a way that ensures repeat business, that tells the clients what they want to hear or that conceals the riskiest outcomes of a certain strategy.

The Rules of Professional Conduct, however, impose a duty of candor on lawyers. Part of that duty includes the responsibility at times to provide clients with advice that they need to know, even if they don’t want to hear it.

ABA Model Rule of Professional Conduct 2.1 addresses this complicated issue, stating that, “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice.”  Comment [1] to this rule then advises that “a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.”

When should a lawyer speak up and deliver “unpalatable” news to their client? What other factors should be considered before providing a client with a difficult message? The comments to Rule 2.1 help provide guidance for attorneys in this situation.

Be Honest With the Client

Comment 1 to Rule 2.1 discusses a client’s right to receive “straightforward advice expressing the lawyer’s honest assessment,” in as “acceptable a form as honesty permits.” Just as the rule states, the comment also suggests that a lawyer should not be deterred from providing candid and honest advice, even when that advice also contains an ugly dose of reality.

The comment to the rule recognizes the practical application of this issue. Delivering difficult news or advice to a client can require finesse, or even an effort by the lawyer “to sustain the client’s morale.” But, at the end of the day, the lawyer’s obligation to be truthful with a client and help a client understand the legal consequences of an action may call for the lawyer to provide advice that is otherwise difficult for the client to hear.

This can also be an effective risk management and claim prevention tool. If a client has asked a lawyer for advice about whether the client’s conduct could be actionable, the attorney may be tempted to comfort or assure the client that nothing could possibly go wrong.

Although such advice could buoy a client’s spirits, it may also be setting the client up for a serious misunderstanding down the road. The client may assume that they faced little or no risk based on the attorney’s advice before the rug is pulled from under them—which could then lead to the lawyer facing significant risk.

Providing that “unpalatable” advice can help ensure that the client understands the risks of a course of conduct and doesn’t then blame the lawyer for an adverse outcome.

Think Outside the Box

Rule 2.1 also recognizes that a client’s decision may rely not only on what their lawyer advises them about the law, but also on other “moral, economic, social and political factors, that may be relevant to the client’s situation.” It is well-accepted that a lawyer’s legal advice to a client may include not only an explanation of the letter of the law, but also appropriate context (such as the impact of a specific legal issue on the client’s business goals or costs, or the effect of the course of action on others).

The rules also recognize that the type of advice that is appropriate for each client depends on the situation and the client’s legal needs. Indeed, advice that only considers the black letter of the law without considering the practical impact of the same may be “of little value” to a client.

Notably, comment [3] to Rule 2.1 recognizes that clients may ask their lawyers to provide them with “purely technical advice,” devoid of economic, social, moral or political context. Although the comment recognizes that lawyers may take these requests at face value, that can also be impacted by the client’s level of sophistication. Indeed, “[w]hen such a request is made by a client inexperienced in legal matters, however, the lawyer’s responsibility as advisor may include indicating that more may be involved than strictly legal considerations,” says Rule 2.1, comment [3].

Know the Limits

Lawyers can also take care to consider whether a client’s needs go beyond purely legal advice. That is, legal matters can implicate issues of many fields, including psychology, social work, accounting or finance. Comment [4] to Rule 2.1 recognizes that “[w]here consultation with a professional in another field is itself something a competent lawyer would recommend, the lawyer should make such a recommendation.”

Sometimes, the experts involved in advising a client may provide conflicting advice or even practical advice that runs afoul of the law. The rules also anticipate this situation, noting that “a lawyer’s advice at its best often consists of recommending a course of action in the face of conflicting recommendations of experts,” according to Rule 2.1, comment [4].

By being aware of the guidance provided by the rules, lawyers can provide clients with a spoonful of sugar along with a bitter pill.