Attorneys and Autonomy

Attorneys and Autonomy

The attorney-client relationship, in contrast, is based on autonomy rather than paternalism. Law is an adversarial process with many areas in which there is no clear societal consensus on the correct role of the attorney. Respecting a person's autonomy can mean protecting a mentally ill homeless person's right to freeze on a grate. Legal paternalism and beneficence was a rationale for the Jim Crow laws that institutionalized segregation in the United States. Short of helping clients commit crimes, attorneys are expected to advocate their clients' wishes zealously, not limit their services to those that are good for the client.

Beyond this philosophical prejudice toward client autonomy, traditional codes of legal ethics limited the attorney's obligation to do the legal equivalent of a complete history and physical. These ethical codes created the limited engagement doctrine. The limited engagement defined the attorney's role as providing the specific legal services sought by the client. In its strictest form, the limited engagement doctrine prohibited the attorney from asking the client about other potential legal problems. This prohibition was intended to prevent barratry, the stirring up of litigation. Such a prohibition was beneficial to attorneys because it greatly limited their liability for legal misdiagnosis. Given that it is difficult to police barratry prohibitions, the limited engagement served to limit attorneys' liability without greatly limiting their ability to stir up litigation.

If the physician-patient relationship was a limited engagement, a physician might prescribe cough medicine to a coughing patient without inquiring into the underlying cause of the cough--ethically and legally proper care under the traditional standard of the limited engagement. The physician-patient relationship is not a limited engagement, however; the physician is ethically bound to consider the patient's overall medical needs. An attorney held to the standards that govern the physician-patient relationship would be required to do a legal checkup on clients to ensure that the services requested by the client were appropriate for the client's total legal health.

The limited engagement is beginning to erode for both business and professional reasons. For example, severe tax consequences of divorce are so pervasive that it is considered unprofessional not to counsel divorce clients about tax problems. This benefits the client and generates an opportunity to deliver additional legal services. In most areas of law, however, the client cannot assume that the attorney will inquire into hidden but related legal problems. Since the law has not developed a comprehensive doctrine of informed consent, the attorney is not required to inform the client of the implications of the limited engagement. A physician seeking legal services must be sure that the attorney addresses the underlying legal disease rather than just providing symptomatic treatment.

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Attorneys and Autonomy