Stop Being a Damned Fool

“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.

4 thoughts on “Stop Being a Damned Fool”

  1. As a second-year law student, I have found myslef more and more questioning the actions of clients that I have seen from internships or from pro bono oportunities that I have done. It is in these capacities that I too often wonder to myself: why would you do that, dont say that, or as you have eloquently put stop being a damned fool. To me an attorney is a powerful advocate. In the scenario mentioned above where President Trump told the White House counsel that he wanted the Justice Department to prosecute Hillary Clinton and James Comey this is a prime example of being a proper advocate. Attorney’s must play the role of advocating efficiently on behalf of their client because as witnessed in this instance the client may not consider the repercussions of their own actions. The lawyers here appear to have been upfront and brutally honest with President Trump.

    Another topic that I feel is important to consider is the importance of teaching law students how to properly communicate with their clients. While you have said that “[a]bout half the practice of a decent lawyer consists in telling would-be clients that they are damned fools and should stop.” This again is only half of the practice of being a decent lawyer. I personally feel that the other half is being able to efficiently communicate with clients when they are being fools or just general day to day communication with clients such as returning phone calls or replying to emails. Client interaction and telling clients everything that they need to know to move forward is an important school that has been discussed in my alternative dispute resolution class to help students gain a better understanding of what it means to not only be a lawyer but a proper advocate for your clients.

  2. To take the thought a step further–I think the McGahn example is great, albeit low-hanging fruit–involves understanding the attorney/client relationship maintenance that goes on during the course of representation.

    Ideally, a client would learn after the first admonition to behave in a manner more in-line with counsel’s preferences. This requires a floor-level respect and communication between counsel and the client, but that is not always there (McGahn perhaps an example of a relationship lacking that requisite respect and communication?)

    Save the wholesale altering of a client’s behavioral chemistry, counsel needs to learn to roll with the punches of a client who acts like an idiot. However, managing and maintaining the attorney/client relationship by establishing and hammering a baseline of respect and communication presumably would limit the instances of idiocy over time.

  3. First, I agree with Ms. Shropshire and Mr. Wagner’s comments above.

    Additionally, I believe that the communication within the attorney-client relationship is an integral part of our jobs as attorneys. There will be moment’s where we are frustrated with our clients actions, but as Mr. Wagner stated above, there will likely be less and less of these moments with a mere baseline level respect between the attorney and the client. As I have seen time and time again in practice, there will always be moments where clients test your patience with their actions and behaviors, but with good communication and respect, hopefully there will be less and less over time.

    Before questioning why clients would do such a thing, I think we as attorneys should respect that everyone is shaped by different experiences, and therefore react and behave differently. I think its important to think about communication skills that we have learned about and use within the dispute resolution field, such as active listening and explaining your viewpoint. With that, hopefully there will be more respect and successful communication between you and your client, less idiocy and more understanding.

  4. While Elihu Root’s statement certainly has merit as a lawyer has the obligation to advise his or her clients about the actions of their consequences, it is important to remember that the attorney client relationship is built on a foundation of trust. Even though a client’s requests can be frustrating, it is important to remember as an attorney to approach situations with as much empathy as possible. If the attorney is able to ask questions of the client to help him or her better understand the client’s interests, both parties would be served to their benefit.

    When the client is able to see that the attorney is doing their best to understand his or her position and best serve their interest, the client will be more inclined to take the advice of the attorney. Sometimes it is important for the attorney to let the client let out their frustrations about a situation. When the attorney approaches the client’s emotions from a place of empathy rather than judgment, the client will likely better take into consideration the attorney’s advice.

    It is easy to quickly judge a client and become frustrated at their requests. However, if the attorney is able to approach the client with empathy and respect, the relationship between the two parties will be better served.

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