I remain surprised that RPC 2.1 is so rarely discussed when it comes to ethics rules. It’s not really a scientific or fair way of justifying my point, but if you were to go search the website of the Tennessee Board of Professional Responsibility for “2.1,” it will inform you “There were no results found. Please try your search again.” Perhaps more tellingly (though still not quite scientific proof), if you go to the very good Legal Profession Blog and search for 2.1, you get 3 results.
Before offering any thoughts about why I think this rule is given little attention and just in case you can’t think of which one Rule 2.1 happens to be off the top of your head, it’s the rule we title “Advisor,” it leads off the section in the rules called “Counselor,” and the ABA Model Rule version reads as follows:
In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social, and political factors that may be relevant to the client’s situation.
Given that the whole second sentence is a “may” provision, this rule is rarely going to be the subject of a disciplinary proceeding. Rarely is a client going to lodge an ethics complaint alleging that a lawyer failed ethically by not making reference to some moral or political factor in rendering advice. Likewise, it should be pretty tough sledding to try to build a malpractice case against a lawyer for some failure to do that which the second sentence would ethically permit. From a disciplinary perspective, that would still leave the first sentence which imposes a “shall” requirement. But rarely should circumstances arise when there isn’t some better, more clearly relevant rule on which to base disciplinary charges against a lawyer. A variety of conflicts rules more sharply address situations in which the concern is that the lawyer’s advice ended up being less than “candid” or that the lawyer allowed some other influence to corrupt or subvert any exercise of truly independent professional judgment. So too can a lack of competence be more easily proven than a violation of RPC 2.1’s “shall” requirements.
But, I still keep thinking that it’s too bad this rule is so infrequently focused upon and discussed. When you step back and try to survey the legal landscape and figure out the ground that is most stable for our profession moving forward into the future, if anything will be bulletproof, then it should be the role described by Rule 2.1 — a lawyer as someone whose judgment is sound, whose advice is good, and who you consider to be a trusted advisor. Surely those lawyers who can manage to be viewed in that fashion will find their law practices least susceptible to erosion through the shifts in the marketplace for the delivery of legal services. At least, I hope that’s true because there are many days where I end up thinking that the only way I’m still practicing law in 10 years is if I’ve managed to convince enough paying clients that I tick off all three of those boxes.
Here are links to two pieces I read this week that left me with a particularly acute sense of this feeling. The first is a well done piece up at The Guardian that offers a much more nuanced discussion than the title would indicate. The second is a piece discussing the “sharing economy” and how that may play out for professional services such as legal services.