Counseling (MPRE)

MBEMax wiki article — paired with the MPRE question set on mbemax.com.

This MPRE article avoids verbatim quotation of the ABA Model Rules (which are copyrighted). It describes the underlying professional-responsibility principles in original language and cites case law, state rules, and Restatement sections.

One-line summary

A lawyer advising a client owes duties of competence, confidentiality, communication, independent judgment, candor, and loyalty — and must balance the client's right to decide objectives against the lawyer's duty to decline or withdraw when continued representation would violate ethical rules or the law.

Mnemonic

C-C-C-I-C-L — Competence, Confidentiality, Communication, Independent judgment, Candor, Loyalty.

Six "Cs plus an I" — six of the seven letters of "CLIENCCCI" (a clunky anagram, but it sticks).

Core counseling duties

Competence

A lawyer must only take on matters she can handle with the legal knowledge, skill, thoroughness, and preparation the matter demands — or must get up to speed or associate competent counsel. Competence has a technology component (electronic discovery, cybersecurity) recognized in state rules modeled on the ABA comment change (many states — e.g., Cal. R. Prof. Conduct 1.1, cmt. [1]).

Confidentiality

Information relating to the representation is protected. Disclosure generally prohibited without informed consent or narrow exceptions (to prevent serious bodily harm, substantial financial injury via crime or fraud in which client used lawyer's services, to comply with law or court order, to obtain ethics advice, to establish a claim/defense in a controversy with client). See Cal. R. Prof. Conduct 1.6; Restatement (Third) of the Law Governing Lawyers §§ 59–67.

Communication

Keep the client reasonably informed about matters; promptly inform of decisions requiring client's informed consent; explain matters to the extent reasonably necessary for the client to make informed decisions. Failures to communicate are among the most-grieved issues in bar discipline.

Independent judgment and candid advice

The lawyer must exercise independent professional judgment and may reference relevant non-legal considerations — moral, economic, social, political — if appropriate. A lawyer doesn't tell the client only what she wants to hear.

Candor

To the client: frank, even uncomfortable, advice. To the tribunal: no false statements of fact or law; correct prior false statements; disclose controlling adverse authority not cited by opposing counsel.

Loyalty

Avoid conflicts; disclose actual or potential conflicts; obtain informed consent in writing where permitted. See separate articles on Conflicts and Lateral Screening.

Scope of representation and allocation of authority

• Client decides objectives — whether to settle, plead, testify, waive jury.
• Lawyer decides means — strategy, legal tactics, consistent with rules.
• Lawyer-client agreement may allocate authority on other matters.
• Diminished-capacity clients — lawyer should as far as reasonably possible maintain a normal relationship; protective action allowed if the client cannot make adequately considered decisions.

Lawyer as evaluator, negotiator, third-party neutral

• Evaluator — preparing an evaluation for use by someone other than the client (e.g., opinion letter to lender). Additional candor and limitations apply.
• Negotiator — duties of candor include no false statements of material fact; puffery distinguished from misrepresentation.
• Third-party neutral — lawyer serves as mediator/arbitrator outside traditional representation; disclosure of non-lawyer role and no confidential relationship.

NCBE loves to test

• Confidentiality is broader than privilege. Confidentiality covers information from any source relating to representation; privilege covers confidential communications for legal advice. Bar exam answers often conflate — keep them separate.
• Exceptions to confidentiality are narrow. Discretionary exceptions require the lawyer to reasonably believe and limit disclosure to what's necessary.
• Decisions allocated. Settle or not = client. Strategy to achieve = lawyer.
• Diminished-capacity clients. Protective action allowed (e.g., seeking guardian) only as reasonably necessary.
• Evaluator role. Requires client's informed consent when disclosure to third party is adverse to client's interests.
• Non-adjudicative representation. Candor rules tailored; no affirmative duty to disclose facts to opposing counsel, but no material misrepresentations.

Fast hypos

Hypo 1. Client tells lawyer she plans to pay a "finder's fee" to a public official in exchange for a contract. Lawyer must counsel the client against the bribery and may not assist. May disclose under narrow crime-fraud exception to confidentiality if the client persists.

Hypo 2. Client with mild dementia insists on a course the lawyer reasonably believes imperils the client's financial welfare. Lawyer may take reasonably necessary protective action, such as consulting with family or seeking guardianship when in the client's interest.

Hypo 3. Lawyer agrees to issue an opinion letter to a bank regarding client's tax position. Lawyer-as-evaluator role; client's informed consent required; candor obligations run to the bank as third party.

Hypo 4. Lawyer realizes after filing a brief that a case cited in the brief has since been overruled. Duty to correct prior false statements; notify the court and opposing counsel.

Case anchors / authority

• Upjohn Co. v. United States, 449 U.S. 383 (1981) — attorney-client privilege in corporate context.
• In re Himmel, 125 Ill. 2d 531 (1988) — duty to report attorney misconduct.
• Meyerhofer v. Empire Fire & Marine Insurance, 497 F.2d 1190 (2d Cir. 1974) — lawyer's self-defense exception for disclosure.
• Restatement (Third) of the Law Governing Lawyers §§ 16, 18–21, 48–53, 59–67.
• Cal. R. Prof. Conduct 1.1 (Competence), 1.4 (Communication), 1.6 (Confidentiality), 1.14 (Diminished Capacity).

See also

• MPRE — Conflicts of interest
• MPRE — Confidentiality & privilege
• MPRE — Lawyer-client relationship

Sources

Restatement (Third) of the Law Governing Lawyers §§ 16, 18–21, 48–53, 59–67; Cal. R. Prof. Conduct 1.1, 1.4, 1.6, 1.14, 2.1, 2.3; N.Y. R. Prof. Conduct 1.1, 1.4, 1.6, 1.14, 2.1; Upjohn Co. v. United States, 449 U.S. 383 (1981); In re Himmel, 125 Ill. 2d 531 (1988); Meyerhofer v. Empire Fire & Marine Ins., 497 F.2d 1190 (2d Cir. 1974).