“About half the practice of a decent lawyer consists in telling would-be clients that they are damned fools and should stop.” That’s what lawyer Elihu Root supposedly said a century ago.
Many lawyers are frustrated with their actual clients at times and are tempted to tell them the same thing – and sometimes do.
There is a new report of such an instance in a very high profile case. According to the New York Times, President Trump told the White House counsel that he wanted the Justice Department to prosecute Hillary Clinton and James Comey but the lawyer, Donald F. McGahn II, “rebuffed the president, saying that he had no authority to order a prosecution. Mr. McGahn said that while he could request an investigation, that too could prompt accusations of abuse of power. To underscore his point, Mr. McGahn had White House lawyers write a memo for Mr. Trump warning that if he asked law enforcement to investigate his rivals, he could face a range of consequences, including possible impeachment.”
People have different opinions about the president, and my point here is not to argue the wisdom or legality of his reported statements.
Rather, it is to vividly illustrate the common dynamic of lawyer-client relations that Mr. Root colorfully described and lawyers’ common tactic of forcefully documenting their advice. Lawyers do this to prevent clients from acting like damned fools and to protect themselves (i.e., the lawyers) in case they do.
John Lande is the Isidor Loeb Professor Emeritus at the University of Missouri School of Law and former director of its LLM Program in Dispute Resolution. He received his J.D. from Hastings College of Law and Ph.D in sociology from the University of Wisconsin-Madison. He began mediating professionally in 1982 in California. He was a fellow at the Program on Negotiation at Harvard Law School and the Director of the Mediation Program at the University of Arkansas at Little Rock Law School. His work focuses on various aspects of dispute systems design, including publications analyzing how lawyering and mediation practices transform each other, business lawyers’ and executives’ opinions about litigation and ADR, designing court-connected mediation programs, improving the quality of mediation practice, the “vanishing trial,” and planned early negotiation. The International Institute for Conflict Prevention and Resolution gave him its award for best professional article for Principles for Policymaking about Collaborative Law and Other ADR Processes, 22 Ohio State Journal on Dispute Resolution 619 (2007). The ABA recently published his book, Lawyering with Planned Early Negotiation: How You Can Get Good Results for Clients and Make Money. His website, where you can download his publications, is http://www.law.missouri.edu/lande.