Advocate v. Advisor: Estimating Likelihood of Success

Originally published by Laura P. Haley.

“We’re going to win,” a board-member announced, pointing at the application for a temporary restraining order, and looking around the room. Turning her gaze to me, she reiterated, “it says, ‘Plaintiff Will Likely Succeed on the Merits,’ and then you give a bunch of reasons why. That means we’ll win the case, right?” “From a purely legal perspective, yes,” I began. “Oh boy. This is why people hate lawyers,” another board-member interjected, as I started to explain. But I wasn’t being coy with the board or dishonest with the court: I was estimating the likelihood of success, as both an advocate and advisor.

Conflicting Estimations

Rule 2.01 of the Texas Rules of Professional Conduct requires that when “advising or otherwise representing a client, a lawyer shall exercise independent professional judgment and render candid advice.” Rule 3.03 states that a “lawyer shall not knowingly make a false statement of material fact or law to a tribunal.” Although these rules require a lawyer’s “candor” to a tribunal and “candid advice” to a client, nowhere do they require that her communication with both be consistent. In fact, these rules allow her estimation to her client and to the court, of the likelihood of her client’s success, to conflict.

What Success Looks Like Depends on Who You Ask

As a commercial trial attorney, I often represent publicly-traded and privately-held entities and other organizations. In the course of my representation, I meet with and advise GCs, boards of directors, audit committees, officers, and executives. In almost every meeting, I anticipate that at least one of these client representatives will ask, in some form, whether we are going to win.

A CEO may ask for the probability of success as a percentage. A COO or marketing executive may want to know whether we can use the litigation to leverage a new or better deal with the opposing party. A CFO or treasurer may ask how much to reserve for the litigation. To each, “success” may mean something different, and each may need to understand a different aspect of the litigation to make an informed decision. So I tailor my responses to each based on: (1) my understanding of how the facts and law relate to the representative’s particular interest; and (2) my assessment of their sophistication.

That tailoring is necessary because Rule 1.03(b) requires that I “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” Entities have multiple stakeholders who influence or are affected by the litigation. Getting their buy-in, responding to their concerns, and figuring out what success looks like from multiple perspectives is often a necessary part of representing an entity, both for in-house and outside counsel.

Practical Versus Legal Advice

In addition, Comment 2 to Rule 2.01, under “Scope of Advice,” states in part, that “[a]dvice couched in narrow legal terms may be of little value to a client, especially where practical considerations, such as costs or effects on other people, are predominant. Purely technical legal advice, therefore, can sometimes be inadequate.” Comment 2 describes other considerations the lawyer may need to discuss with her client, including moral or ethical ones.

The impact that these considerations can have on a lawyer’s estimate of her client’s likelihood of success is significant. Any one of them, whether it is containing the cost of the litigation, collecting a judgment, or leveraging the litigation to obtain a commercial benefit (to name a few), can make “success” more or less likely to a particular client representative and have more to do with practical and ethical considerations than legal analysis.

Rule 3.03, however, requires none of these extra-legal considerations. The lawyer’s duty of candor to the tribunal is a limitation on her role as an advocate and requires her to provide accurate factual evidence and legal analysis. As such, she calculates the likelihood of her client’s success from a purely logical approach, applying a given set of facts to the law. But to her client, a purely legal calculation “can be inadequate.” Instead, her duty to render candid advice means she can and should discuss a host of other considerations, including the variable meaning of “success.”

Thus, in my role as advisor, my client’s “success” is a multifaceted concept that often looks very different than it does when I am my client’s advocate. And in our continued discussions with our client’s representatives about what “success” means to them, we fulfill our duty to our clients to exercise our independent professional judgment and provide candid advice. Far from being a reason to hate lawyers, our different perspectives, as advocates and advisors, are one of the many reasons lawyers are a valuable member of a client’s team.

Image courtesy of Flickr by Steve Johnson.

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