Legal Ethics and Client Advocacy: Understanding the Complexities
Lawyers have a duty to advise their clients of potential pitfalls in the legal landscape that they might not be aware of. However, this responsibility can become complicated when determining “who is the client?” proves to be a challenging question.
A Conflict of Interest Among Friends
When a lawyer believes that a certain ethical path must be taken, but their spouse, who is also a paralegal, disagrees, it creates tension not only between the professional and personal realms but also among family and friends.
Consider the case of Helen and Ray, who have been lifelong friends of lawyer Steve and his wife Susan. Helen and Ray view Steve as their family attorney; however, they never formalized this relationship by signing a retainer or compensating him for occasional legal advice. Cultural norms from their Asian background emphasize face-saving and the importance of avoiding conflict.
Understanding Medical Malpractice
Helen underwent total thyroid-removal surgery with success at a reputable teaching hospital but returned home to a series of unfortunate medical mishaps. After the surgery, she was not adequately monitored and soon began to experience severe complications, leading to hallucinations, loss of consciousness, and eventually a coma. The medical tests obtained upon her return to the hospital revealed alarming abnormalities, indicating she was a victim of gross medical malpractice.
Now, in her mid-70s, Helen requires extensive skilled nursing care for the rest of her life. Her husband, significantly older, struggles to accept the gravity of the situation.
Urgent Legal Advice from Attorney Steve
Upon Helen’s initial admission to the emergency room, attorney Steve advised Ray and their adult son—who had never established an attorney-client relationship with him—to obtain copies of Helen’s medical records immediately. He emphasized, “This should not have happened!”
Steve followed up with a kindly worded email, urging them to secure medical records and offering to refer them to a medical malpractice attorney. Despite his efforts, he received no response. Two months later, when he attempted further communication, his wife Susan expressed her concern and requested he not interfere.
The Duty of a Lawyer
In Steve’s view, it is his ethical responsibility to ensure his friends do not miss critical deadlines or overlook essential medical records. He expressed concern about potentially facing blame or legal action for the friends’ inaction in seeking counsel or filing a lawsuit to preserve their rights under medical malpractice statutes.
Insights from Experienced Legal Experts
A Retired Medical Malpractice Attorney
A retired attorney specializing in medical malpractice shared their perspective: “Steve’s duty is to act ethically, regardless of his wife’s reluctance to disturb their friends. It is crucial he informs them about the risks they face if they fail to act, especially regarding statutes of limitations related to wrongful death claims.”
A Retired Judge’s Perspective
A former L.A. County judge commented, “While Steve’s suggestion to ‘Get the chart’ may seem informal, it is important to provide clear advice regarding the urgency of their situation. He should clarify his limitations in representing them for medical malpractice and recommend they seek assistance from a qualified attorney.”
What Type of Lawyer Do You Need?
This unfortunate situation raises a critical question: What kind of lawyer do you seek? Do you want someone who stands firm against ethical dilemmas and advises you candidly about the threats you face if you do not heed their professional guidance? Or someone who is passive, causing further distress during vital moments? Many individuals, including Helen’s adult children, find themselves paralyzed by fear and indecision when prompt action is necessary.
While Steve remained committed to guiding his friends through this tumultuous experience to navigate the complexities of legal ethics and client advocacy, the potential for discord was palpable.
H. Dennis Beaver practices law in Bakersfield, Calif., and welcomes comments and questions from readers. Feel free to reach out at Lagombeaver1@gmail.com.
Disclaimer
This article is based on the insights of H. Dennis Beaver and does not represent the views of any official editorial team. For further information regarding advisor credentials, please check the SEC or FINRA.
