May 7, 1996
A lawyer has an obligation to recommend alternatives to litigation when an alternative is a reasonable course of action to further the client's interests, or if the lawyer has any reason to think that the client would find the alternative desirable.
References: MRPC 1.2(a), 1.4(a) and (b), 2.1.
The Committee has been asked whether lawyers have an ethical obligation to inform their clients of alternatives to litigation?
There is generally an ethical duty to inform the client of any options or alternatives which are reasonable in pursuing the clients lawful interests. MRPC 1.4. While not all options which are theoretically available need be discussed, any doubt about whether a possible option is reasonably likely to promote the clients interests, as well as any doubt about whether the client would desire the use of any particular option, should be resolved in favor of providing the information to the client and allowing the client to render a decision. This decision should be rendered with the assistance of the lawyer's best advice and judgment.
MRPC 1.2(a) states:
"(a) A lawyer shall seek the lawful objectives of a client through reasonably available means permitted by law and these rules. A lawyer does not violate this rule by acceding to reasonable requests of opposing counsel that do not prejudice the rights of the client, by being punctual in fulfilling all professional commitments, or by avoiding offensive tactics. A lawyer shall abide by a client's decision whether to accept an offer of settlement or mediation evaluation of a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, with respect to a plea to be entered, whether to waive jury trial, and whether the client will testify. In representing a client, a lawyer may, where permissible, exercise professional judgment to waive or fail to assert a right or position of the client."
"Reasonably available means" include those options permitted by law. There is no limitation to means involving litigation, and certainly no reason to conclude such a limitation was intended.
The Comment to MRPC 1.2 further notes that it is the client who has the ultimate authority to determine the purpose to be served by legal representation provided such purposes are within the law, and a lawyer's ethical obligations.
MRPC 1.4 states:
"(a) A lawyer shall keep a client reasonably informed about the status of a matter and comply promptly with reasonable requests for information. A lawyer shall notify the client promptly of all settlement offers, mediation evaluations, and proposed plea bargains.
"(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation."
The spirit and intent of these rules is to see to it that the client's subjective desires and objectives are the goal of the lawyer, as long as they are not illegal or fraudulent, or involve the lawyer in violations of the Rules of Professional Conduct. MRPC 1.2(c) and (d). The lawyer must communicate any and all information necessary to allow the lawyer to be confident that these goals and objectives are those which the lawyer seeks to accomplish. If a course of action reasonably available may accomplish these ends, then that course of action must be communicated to the client, together with information to allow the appropriate exercise of the client's judgment. MRPC 2.1. The cost of any available option as well as the likely benefits of such an approach are factors to consider in determining if the alternative is a "reasonably" available means.
Hypothetical options which are unlikely to satisfy the client's objectives need not be communicated. However, specific options available by offer, or which are known to the lawyer to represent a possible means to obtain the desired objectives of the client should be communicated.