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On Persuasion and Paternalism: Lawyer Decisionmaking and the Questionably Competent Client Paul R Boston College Law School Digital Commons @ Boston College Law School Boston College Law School Faculty Papers January 1987 On Persuasion and Paternalism: Lawyer Decisionmaking and the Questionably Competent Client Paul R. Tremblay Boston College Law School, [email protected] Follow this and additional works at: https://lawdigitalcommons.bc.edu/lsfp Part of the Legal Ethics and Professional Responsibility Commons, Legal Profession Commons, and the Litigation Commons Recommended Citation Paul R. Tremblay. "On Persuasion and Paternalism: Lawyer Decisionmaking and the Questionably Competent Client." Utah Law Review no.3 (1987): 515-584. This Article is brought to you for free and open access by Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law School Faculty Papers by an authorized administrator of Digital Commons @ Boston College Law School. For more information, please contact [email protected]. On Persuasion and Paternalism: Lawyer Decisionmaking and the Questionably Competent Client Paul R. Tremblay* The increasing recognition that the attorney-client relation- ship is governed by considerations of informed consentl inevitably creates considerable uncertainty for attorneys representing clients whose competence is in question. The ideology of informed consent asserts that lawyers may act only, or primarily, on the direction of their clients. Lawyers serve, in this fundamental sense, as agents of their clients. The supposition that lawyers know what is best for their clients is no longer as accepted as it may have been in the * Assistant Clinical Professor of Law, Boston College Law School; J.D. 1978, UCLA; B.A. 1973, Boston College. A somewhat different version of this Article was presented at the UCLA-University of Warwick International Clinical Conference in Los Angeles, California, in October, 1986. I wish to thank Mark Spiegel and Alexis Anderson for their helpful and insightful comments on earlier drafts of this work. To infer that each agrees with all of the conclusions drawn here, however, would be a mistake. I also wish to thank Andrew Sharp, Maris Abbene, and Michele Lerner for their valuable research assistance. 1. Much has been written over the past two decades about informed consent and its applicability to lawyering. Several commentators and scholars have explored the general question of who controls whom within the attorney-client dyad. See, e.g., J. HEINZ & E. LAUMANN, CHICAGO LAWYERS: THE SOCIAL STRUCTURE OF THE BAR (1982); D. ROSENTHAL, LAWYER AND CLIENT, WHO'S IN CHARGE? (1974); Heinz, The Power of Lawyers, 17 GA. L. REV. 891 (1983); Kritzer, The Dimensions of Lawyer-Client Relationships: Notes Toward a The- ory and a Field Study, 1984 AM. B. FOUND. RES. J. 409; Mazor, Power and Responsibility in the Attorney-Client Relation, 20 STAN. L. REV. 1120 (1968). Other writers have focused that theme by addressing the "doctrine" of informed consent in law. See, e.g., Martyn, Informed Consent and the Legal Profession, 48 GEO. WASH. L. REV. 307 (1980); Maute, Allocation of Decisionmaking Authority Under the Model Rules of Professional Conduct, 17 D.C. DAVIS L. REV. 1049 (1984); Peck, A New Tort Liability for Lack of Informed Consent in Legal Matters, 44 LA. L. REV. 1289 (1984); Spiegel, Lawyering and Client Decisionmaking: In- formed Consent and the Legal Profession, 128 U. PA. L. REV. 41 (1979); Strauss, Toward a Revised Model of Attorney-Client Relationship: The Argument for Autonomy, 65 N.C.L. REV. 315 (1987); cf. S. GILLERS & N. DORSEN, REGULATION OF LAWYERS: PROBLEMS OF LAW & ETHICS 319 (1985) (informed consent an "emerging right"). Still others have approached the issue from a more philosophical perspective, with particular reference to the virtues of "cli- ent-centeredness." See, e.g., D. BINDER & S. PRICE, LEGAL INTERVIEWING AND COUNSELING: A CLIENT CENTERED APPROACH (1977); T. SHAFFER, ON BEING A CHRISTIAN AND A LAWYER 3-20 (1981); Katz, On Professional Responsibility, 80 COMM. L.J. 380 (1975); Lehman, The Pur- suit of a Client's Interest, 77 MICH. L. REV., 1078 (1979); Shaffer, Christian Theories of Professional Responsibility, 48 S. CAL. L. REV. 721, 728-38 (1974). Despite this increasing attention to informed consent, the literature thus far has failed to address informed consent considerations in the context of less-than-competent clients. 515 516 UTAH LAW REVIEW [1987: 515 past; instead, the profession has grown in the realization that the most effective lawyering decisions are made by clients themselves.2 There are times, however, when a lawyer adhering to this ideology believes that the client, whether because of advanced age, mental or physical illness, or similar disability, is not capable of. making informed choices, and if permitted to do so will injure himself or, at a minimum, fail to achieve the objectives of the representation. This Article attempts, at least in a preliminary fashion, to explore the avenues that might be open to an attorney in these circum- stances. The term "preliminary" should be stressed, as the nature of the relationship between a lawyer and her possibly incompetent client is difficult to discern. The thoughts developed here can only begin to structure a workable theory for that interaction. The issue of informed consent and the impaired client has been addressed seldom, if ever, in the legal context. The matter has been explored somewhat more fully in the medical context,3 where the ramifications of the informed consent doctrine in general have been debated more intensely.4 This Article's discussion of the role of the lawyer representing an impaired client, therefore, will 2. See, e.g., D. BINDER & S. PRICE, supra note I, at 147-53; Freedman, A Lawyer Doesn't Always Know Best, 7 HUM. RTS. 28, 52 (1978); Shaffer, supra note 1, at 728; see also infra notes 31-48 and accompanying text. 3. See, e.g., PRESIDENT'S COMM'N FOR THE STUDY OF ETHICAL PROBLEMS IN MEDICINE AND BIOMEDICAL AND BEHAVIORAL RESEARCH, 1 MAKING HEALTH CARE DECISIONS: THE ETHI- CAL AND LEGAL IMPLICATIONS OF INFORMED CONSENT IN THE PATIENT-PRACTITIONER RELATION- SHIP 167-88 (1982) [hereinafter MAKING HEALTH CARE DECISIONS]; S. JORDAN, DECISIONMAK- ING FOR INCOMPETENT PERSONS: THE LAW AND MORALITY OF WHO SHALL DECIDE (1985); Brant, Last Rights: An Analysis of Refusal and Withholding of Treatment Cases, 46 Mo. L. REV. 337, 347-61 (1981); Meisel, The "Exceptions" to the Informed Consent Doctrine: Striking a Balance Between Competing Values in Medical Decisionmaking, 1979 WIS. L. REV. 413, 439; Solnick, Proxy Consent for Incompetent Non-Terminally III Adult Patients, 6 J. LEGAL MED. 1 (1985). This is but a small sampling of the voluminous literature on treatment and competence in the medical field. It is not surprising that this issue has received greater attention in medical circles, be- cause medical decisions are made almost invariably in the context of illness, which may impair consent and create hard choices for physicians. This fundamental difference between doctoring and lawyering, however, cannot justify the paucity of literature on competent in- formed consent in the legal context. Lawyers also represent ill clients, and the crises that precipitate a decision to seek legal help might impair rational decisionmaking. 4. See, e.g., P. ApPELBAUM, C. LIDZ & A. MEISEL, INFORMED CONSENT (1987); R. BURT, TAKING CARE OF STRANGERS: THE RULE OF LAW IN DOCTOR-PATIENT RELATIONS (1979); J. CHILDRESS, WHO SHOULD DECIDE? PATERNALISM IN HEALTH CARE (1982); J. KATZ & A. CAPRON, CATASTROPHIC DISEASES: WHO DECIDES WHAT? (1975); Hagman, The Medical Pa- tient's Right to Know: Report on a Medical-Legal-Ethical Empirical Study, 17 UCLA L. REV. 758 (1970); Meisel & Roth, Toward an Informed Discussion of Informed Consent: A Review and Critique of the Empirical Studies, 25 ARIZ. L. REV. 265 (1983); Plant, The De- cline of "Informed Consent," 35 WASH. & LEE L. REV. 91 (1978). No.3] LAWYER DECISIONMAKING 517 draw on the suggestions developed for physicians, I) but for several reasons what works for medical professionals may not work equally well for lawyers. The lawyer's great difficulty in proceeding with representation of a confused client should be apparent. The most obvious problem is the considerable tension between the ethical requirement6 that the lawyer permit the client to make decisions and the lawyer's considered judgment that to do so not only would fail to achieve the purposes of the representation but also would be to follow an instruction that the client would not give in more lucid times.' Looming in the 1?ackground is the doctrine of presumed compe- tence, asserting that it is not permissible ethically or legally for one person (the lawyer) unilaterally to usurp the authority of another (the client) without either that person's consent or court permis- sion.8 For lawyers in particular this dilemma is heightened because they face a peculiar role tension that may serve to prohibit any attempt on their part to obtain court permission to usurp a client's decisionmaking authority. A lawyer who seeks to establish a guard- ianship or similar proxy for her client will run afoul of numerous professional responsibility concerns, most notably those of loyalty,9 5. This is especially true when the role of the family in proxy decisionmaking, and the role of persuasion and "fraternal correction" in obtaining consent, are addressed. See infra notes 220-31 and 276-85 and accompanying text. 6. To characterize the doctrine of informed consent as an "ethical requirement"
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