Why Attorneys Must Always Tell About Less Costly “Alternative Courses of Legal Action”

If you want to get that “deer in the headlights” look from an attorney ask her if she is familiar with the mandatory ethical duty to explain alternative courses of action. See ABA Annotated Model Rules of Professional Conduct, Comments to RPC 1.4(b) at p. 63 “Duty to Explain Law and Benefits and Risks of Alternative Courses of Action.”

As this mandatory duty relates to controlling legal costs, it means that an attorney is absolutely required to provide a client with “alternative courses of action” that may be less costly but may still accomplish the overall objective.  This ties in with a lawyer’s ethical duty to defer to the client on issues having to do with expenses.  See RPC 1.2, Comment [2] “lawyers usually defer to the client regarding such questions as the expense to be incurred.” And it stands to reason that a client cannot be expected to make an informed decision on proposed expenses unless you know all of the options.

What this duty means is that even if the client laid out to the lawyer what to do and how the client wanted it done, an ethical lawyer should explain any reasonable “alternative courses of action” that may be available to accomplish the stated objectives.  This especially would include those alternatives that might involve less expense.

The mandatory duty to explain “alternative courses of action” typically arises at the outset of the representation.  But this ethical duty is not limited to the onset of the representation. It is a continuing duty throughout the course of the representation.  Thus, if the legal fees and costs are becoming an issue at any point in the representation, the attorney would have had an ethical duty to explain to the client any “alternative courses of action” that would involve less expense.

Of course, in the final analysis it could be that there were no “alternative courses of action” that would have involved less expense.  However, if there were less expensive “alternative courses of action” and the attorney did not discuss them with the client at the outset of the representation (or at any time during the course of the representation), then the client may have grounds to dispute the difference between the actual costs of the more costly and less expensive courses of action.

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