Legal practitioners often act as both lawyers and advisors. Typically an attorney-client relationship involves a balance between purely legal considerations, on one hand, and other matters of business, ethical, political or even moral impact. Thus, lawyers often consider both the strict requirements of the law, as well as cultural or political mores that can impact the merits of the representation, in guiding their clients.

Lawyers generally balance purely legal or technical advice to a client with advice that considers the lawyer’s experience, business acumen and other factors. ABA Model Rule of Professional Conduct Rule 2.1 speaks to this concept and provides some guidance to lawyers about how to wear two hats at once.

Adding Value by Providing Advice in Context

Lawyers are able to add value to a client’s legal and business goals in helping the client navigate legal advice. For this purpose, the rules contemplate a lawyer supporting a client through difficult situations.

Comment 1 to Model Rule 2.1 states, in part, “[a] client is entitled to straightforward legal advice,” but in presenting that advice, lawyers should “sustain the client’s morale” and phrase their advice as directly as "honesty permits." However, lawyers “should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.” Honesty really is the best policy, but it often requires tact and strategy.

The ethical rules recognize that there may be circumstances where it is preferable, or even required, for a lawyer to consider things beyond the black letter of the law in providing legal advice to a client—the lawyer must also act as an advisor or counselor. Comment 2 to Model Rule 2.1 states:

[2] Advice couched in narrow legal terms may be of little value to a client, especially where practical considerations, such as cost or effects on other people, are predominant. Purely technical legal advice, therefore, can sometimes be inadequate. It is proper for a lawyer to refer to relevant moral and ethical considerations in giving advice. Although a lawyer is not a moral advisor as such, moral and ethical considerations impinge upon most legal questions and may decisively influence how the law will be applied

Consider a lawyer working with a client who is about to enter into a deal for a major redevelopment project in an up-and-coming neighborhood. Beyond merely participating in the negotiation to get the deal done and identifying the relevant zoning laws, that lawyer may also comment to the client on the tone and politics surrounding the neighborhood at the time of the deal. This goes beyond strictly legal advice, but can be critical in providing context for the terms of the deal and what factors may impact the likelihood of success.

In another example, a lawyer may make a recommendation to the client about what witnesses to call at trial. This can involve a legal analysis, regarding which witnesses can present the necessary evidence to meet the client’s burden of proof at trial, but it can also involve other factors based on how palatable the witnesses may appear to the jury. Indeed, if a witness has credibility issues or could be subject to impeachment, or if there are other reasons what the witness may not be liked by the jury, the lawyer may need to advise the client of these extra-legal factors.

Is the Client Sophisticated?

Sometimes providing isolated technical legal information to a client, while accurate and by-the-book, may be less helpful to a client who is inexperienced in complex legal issues. In those instances, the lawyer might need to consider other steps to help “advise” the client. Comment 3 to Model Rule 2.1 explains that clients may ask for purely technical advice from their lawyer, but a lawyer should consider the client’s experience with legal matters before taking that request at face value.

Despite what a client seeks, lawyers should consider the client’s sophistication in deciding how to best approach complicated legal decisions. For a less sophisticated client, a lawyer may need to counsel their client on tangential matters that go beyond the mere letter of the law.

For example, a client facing criminal liability may ask their lawyer whether the conduct of which the client is accused violates the law. Although the lawyer should comment on the legal requirements of the criminal statute, the client may need more context to understand the impact of the lawyer’s legal analysis. It may also be helpful to tell the client about the demeanor of the state’s attorney, the judge’s history in considering similar charges, and the political climate that could impact whether a conviction is likely—as well as the ramifications of a conviction—to help provide the client with appropriate context beyond the simple elements of a particular criminal offense.

The Balance Between Legal Advice and Other Professional Advice

Comment 4 to Model Rule 2.1 contemplates that sometimes a lawyer has an obligation to recommend other professionals to help advise the client. The comment provides 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.”

This may mean that lawyers are recommending or retaining tax and accountancy experts to help a client navigate a particular business issue, or pursuing a counselor or therapist to assist a client facing a complex domestic issue. The rules call on lawyers to recognize if a client requires additional resources beyond that which the lawyer can provide.

By balancing their roles between lawyers and advisors, practitioners can help their clients navigate difficult decisions with support, context and advice.