LAWYER AS PROFESSIONAL SERVICE PROVIDER

LAWYER AS THERAPIST?

John  G. Balestriere recently published some excellent–or at  least mostly excellent–advice: Lawyers “have to be unemotional in our work, but we can’t expect that our clients. We serve them better when we remember not only our role as advocate and counselor,but there as client.” In addition he observes and advises that an L is not a friend of the client, not his/her yoga partner or her/his therapist. See his In the Attorney-Client Relationship, You Are The Service Professional (February 5, 2016). His remarks are focused on litigation.

It is certainly true that lawyers need to be objective, discerning, insightful, knowledgeable, and providers of legal services. It is also true that a lawyer, as he puts it (more or less) that it is not the lawyer’s role to “to stroke your stroke your client’s hair and and tell them all will be ok and say ‘Om’  or have them sit on a couch or have the client  [or permit your client] to tell you about their mothers.” It is also true that insofar as lawyers are counselors they are not exactly councilors. 

Nevertheless, there are at least two ways the “Balestriere Doctrine” goes wrong. (Some might even call it the “Balestriere Macho [or, macha] Doctrine,” but that might be wrong, unkind, uncharitable, or some combination thereof.)

First, representing a client in a high risk situation, e.g., litigation where there is actual controversy involved and sufficient-to-substantial amounts of money at stake requires that L deal with the internal, emotional lives of C. It requires knowledge of and dealing with stress levels, unconscious resistance factors, negative biases (as psychologists call them), and so forth. It requires L having that kind of knowledge (or trying to have it anyway)and then using it “on” C for C’s benefit, i.e., in the service of C’s interests. Actually, this is a professional duty of Ls. 

Second, performing this process might require some degree of comforting, something Balestriere rejects.  It might also require reducing or eliminating some “distance” between L and C. (Of course, under some circumstances too great a reduction can lead to a different kind of problem.) In any case, often manifesting sympathy and solidarity with C is a necessary part of L’s professional responsibilities. 

Law school doesn’t teach much about all this, and never has. One wonders if it would be well to do so. After all, experience taken just by itself without the right sort of open-mindedness probably won’t help much. Then again. Imagine a class entitled “Counsel and Counselor,” or something of the sort. Imagine a clinic on the same topic. Imagine a course or clinic entitled “Client Management.”