Chapter 1

THE LEGAL AND NONLEGAL DIMENSIONS OF A CLIENT'S PROBLEM

John Crampton of Mid-Marine Insurance enthusiastically describes Mid-Marine's potential acquisition of Enterprises Inc., a small aluminum manufacturer. Gary Swartz of the Crestwood Home Owners Association frantically wants to enjoin a Crestwood property owner who, despite deed restrictions, wants to split his lot. Alex Combs sadly wonders how his arrest for burglary will affect his job and children. Louise Harris, manager of Blake County Water District, discusses the District's need to raise capital through a new bond issue. Marlene Fox excitedly describes a new record deal that Columbia wants her to sign. Phil Bondchefski, the CEO of Apex Steel, is furious that Apex has been sued for price flxing. Arlene Wagner, executive director of the local NAACP chapter, is concerned about renewing the chapter's lease. Helen Reston angrily relates that she was fired for reporting the company's practice of overcharging on government contracts and wants to sue her former employer for compensatory and punitive damages. Charles Winnegar quietly states that he wants to make a will leaving nothing to his son. Grace Parker dispassionately expresses her desire to sell her $750,000 lakeside vacation house without capital gains liability.

1. INTRODUCTION
Clients come to lawyers seeking help in solving problems. And as the opening examples suggest, the range of people and problems that lawyers encounter is enormous. The array embraces differences in size, complexity, emotional content and legal status. 1 Some problems
1. By size, lawyers typically mean the amount at stake. Cf. M. Galanter, "MegaLaw & Mega-Lawyering in the Contemporary United States," in The Sociology of the Professions, 156--57 (1983). Complexity, on the other hand, usually has no single meaning. Cases are seen as factually, procedurally and /or legally complex. Factual complexity typically refers to the amount of investigation involved. See J . Freund,

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involve disputes over past events and others focus on planning for the future. But no matter who the client, what the substantive legal issues or whether the situation involves litigation or planning, your principal role as lawyer will almost always be the same-to help clients achieve effective solutions to their problems. The process by which you facilitate the resolution of client problems-that is, the process of counseling-is the subject of this book. Although law school perhaps gives a contrary impression, identifying and helping clients resolve problems requires more than knowledge of relevant legal principles.2 You also need to know about clients' individual circumstances if you are to help them shape satisfactory solutions.3 Thus, two clients may have the same "legal " problem, but a solution that satisfies one may be unthinkable to the other. Accordingly, effective counseling demands understanding of how each client's unique goals and needs intertwine with legal issues. Achieving this understanding requires that you acquire knowledge
in at least two broad areas not directly linked with legal principles. Skilled lawyers' knowledge in each of these areas helps demonstrate

why the practice of law requires much more than knowledge of the law. The first area concerns the context(s) in which clients' problems are embedded. Helping fashion solutions to problems involving surgical malpractice requires knowing something about medical diagnostic techniques, surgical procedures, and hospital practices. Similarly, if a client's proposed business venture concerns marketing a new software program, you probably need some knowledge of software products, marketing practices and venture capital. This first "extralegal" area,
" Handling Clients." 6 Legal Econ. 32, 34 (Oct. 1980). Procedural complexity typically refers to the necessity to comply with a host of rules. When terming a case legally complex, lawyers use different criteria. Sometimes legal complexity encompasses the notion that the subject matter is in tellectually demanding. (For a discussion of the substantive subject areas lawyers in the Chicago, lllinois area perceive as intellectually demanding, see E. Laumann & J . Heinz, "Specialization and Prestige in the Legal Profession: The Structure of Deference," 1977 Am.B.Found.Res.J. 155, 16668). Or, the term may mean that the matter involves legal issues for which the substantive law is unclear or in a state of continual nux, (see Id.) or needs to be modified or perhaps even reversed in order to protect the client. Or, legal complexity may mean that the substantive law involves a number of rules that are unfamiliar to all but those who are specialists in the particular substantive area. For exa mple, even lawyers who have some experience in areas such as securities fraud, anti-trust or murder prosecutions, might well describe such areas as complex because of the number of rules with which one must be familiar in order to handle such cases. 2. Arguably, the typical law school casebook substantially contributes to the erroneous impression that solving clients' problems begins and ends with an ability to apply a proper legal rule. The usual appellate case begins with a short summary of facts, and then immediately launches into a statement such as, "The first issue we must decide is " Such statements may accurately describe a problem as it appears to appellate courts; law students and new attorneys can therefore be excused for characterizing clients' problems in the same manner. 3. See C. Peck, "A New Tort Liability For Lack of Informed Consent in Legal Matters," 44 La.L.Rev. 1289, 1301 09841.

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then, is principally content-based; its focus is "industry knowledge" that you either have or will need to acquire. 4 This book does not purport to define the "industry knowledge" that you will need in every situation, or indeed even in "typical" situations. However, by using examples that cover a broad range of legal and factual settings, in the contexts of both litigation and planning, the book does attempt to illustrate how contextual knowledge typically bears on the counseling process. "Industry" data, as you will see, both identifies subjects requiring investigation, and helps you create and explore potential solutions tailored to each client's individual needs and objectives. The second extralegal area focuses more on process than content. Clients come to you with differing degrees of knowledge, emotion and sophistication. Some you will know personally; others will be strangers. Some will readily make decisions; others will be in a continuous quandary. Accordingly, for legal principle and contextual knowledge to lead to effective solutions, you need understanding and skills in a variety of interpersonal spheres including interviewing, counseling and negotiation. This book focuses on this second extralegal area-the personal interaction between lawyer and client. It primarily explores the processes of interviewing and counseling. The book attempts to provide a general approach to interviewing and counseling and an array of skills that you can employ when talking to clients. Effective interviewing and counseling is broadly seen as having two components: understanding and action. 6 The first component involves being receptive and responsive to clients by listening to their problems and concerns with sensitivity, warmth and understanding. The second component complements this responsiveness with action-oriented activities, such as identifying problems, gathering information and structuring the decision-making process. While these two components may seem quite independent of each other, they become fused and highly interrelated when counselor and client successfully interact.

In earlier times, the nearly universal view was that good interviewers and counselors were "born and not made." 6 However, substantial evidence now indicates that communication skills can be learned, and that even those thought of as "born interviewers" benefit from various opportunities to observe, practice and receive corrective feedback.7 Of course, like recipes for Thousand Island salad dressing, no two clients or problems are precisely alike. Moreover, lawyers are no less unique than clients in behavior, idiosyncrasies and attitudes. Nevertheless,
4. For discussion of using "industry knowledge," see Chapter 9, sec. 5; Chapter 18, sec. 2.

6. L. Cormier, W. Cormier & R. Weiss er, Interviewing and Helping Skills for Health Professionals 3 (1984).
7. See G. Goodman, The Talk Book 303 (1988).

5. See R. Carkhuff, Helping and Human R elations 35 (1969).

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general skills and techniques exist which you can employ in counseling clients who are very different from each other. With practice, the principles and skills explored in this book should enable you to establish professional attorney-client relationships; to motivate clients to reveal salient legal and nonlegal information; to help clients feel personally comfortable; and to encourage them to make choices among alternatives that best achieve their individual needs.

2. CLIENTS' TYPICAL NONLEGAL CONCERNS

As suggested above, lawyers' principal societal role is to help clients resolve problems, not merely to identify and apply legal rules. Nonetheless, too often lawyers conceive of clients' problems as though legal issues are at the problems' center, much as Ptolemy viewed the Solar System as though the Earth were at the center of the universe.8 But legal issues may be no more the essence of a client's problem than, perhaps, religion might be its essence if a troubled client chose to talk to a minister rather than to you, a lawyer. Whatever the legal aspects of a problem, nonlegal aspects frequently are at the heart of a client's concerns. Effective counseling inevitably requires that you elicit information about these nonlegal aspects and factor them into a problem's resolution.

Because legal writing's proclivity to see problems through courts' eyes overlooks problems' nonlegal dimensions, 9 we illustrate the ubiquitousness of nonlegal concerns through three short hypotheticals. As you read through them, please think about the types of nonlegal concerns that clients are likely to have; why those concerns are inevitably present; and why the nonlegal aspects of problems so frequently create difficulty for clients. Also, please consider how awareness of the nonlegal aspects of problems might alter your analysis of what a client's problem consists of and how you might assist the client to resolve it. * When Phil Kretsky got off the elevator, he was immediately struck by the stereotypical law firm look. Large bronze letters on the wood paneled wall spelled out the firm name. The reception area was large, expensively furnished, nicely pictured and virtually unpeopled. Only the receptionist in her tailored dark blue suit prevented the space from being completely uninhabited. Kretsky gave his name and was told, as was common, that someone would be out in a moment to take him to Mr. Kamp's office.
8. For a reminder of Ptolemy's views see 0. Neugebauer, A History of Ancient Mathematical Astronomy (1975); R. Newton, The Origins of Ptolemy's Astronomical Parameters (1982).
9. For a refreshing exception see J. Collins, "Improving the Relationship Between Lawyers and Business Clients," 20 Am.Bus. L.J. 525, 530 (1983).

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As soon as Kretsky entered, Kamp rose to greet him. "Mr. Kretsky; Bob Kamp. Pleased to meet you; why don't we sit over here. I find the formality of a desk often interferes." Kamp beckoned to what might best be described as a small living room set-up near the south wall. Kretsky took the club chair and Kamp opted for the sofa at Kretsky's right. There was then some chitchat about the weather and some inquiry into the difficulty of fmding parking. When this concluded, Kamp began: "Maybe the easiest way to start is for you to explain how I can help you." What Kretsky thought and said were quite different. In his mind, the response was quite straightforward: "You can help by drawing and negotiating a lease which sticks to the basic terms we've already worked out with Midland. You can help by letting me worry about the economics of the deal and not insisting that every conceivable contingency known to the legal mind be covered in the lease. You can get this done quickly so we can start moving our upholstery operation into the building by the end of next month and so I can report to next month's Board meeting that the deal has been concluded. By the way, make sure that Midland does deliver possession by that date; the old tenant isn't out yet. Finally, you can help by keeping the fees reasonable so that the Board does not complain about my using outside counsel."

In words, however, the reply was much less direct: ''I'd like you to help
us with a lease deal for some new factory space."

For three quarters of an hour, Joyce Cappetta sat in the reception area. Normally, the wait would have angered her considerably. As a litigator with 10 years' experience and a partner, she was not used to such treatment. However, if Weldon Frazer wanted her to wait, she'd wait. Yesterday afternoon she had received a telephone call from Frazer's secretary. Frazer was president of West Coast Timber; the secretary had asked if Cappetta could meet with Frazer at his office sharply at 3:00p.m. today. Of course, the answer was yes; West Coast had paid the firm almost $400,000 in fees last year, and if Frazer wanted a meeting at 3:00, Cappetta could certainly rearrange her calendar.

As she waited, Cappetta kept speculating about why Frazer had asked for her personally. There were two partners in the corporate department who dealt directly with Frazer and each was senior to her. Moreover, the work she did for West Coast was but glorified collection work that took place under the rubric of construction industry litigation. Cappetta received her cases from Dave Moore, the credit manager, and she had never had any contact with Frazer or any other corporate officer.
When she was fmally ushered into Frazer's office, Frazer began immediately. "Ms. Cappetta, nice to see you; I've heard a lot of good things about your work for us. Won't you have a seat?" The chair to

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LEGAL & NONLEGAL DIMENSIONS

which Frazer motioned was one of two upholstered arm chairs that sat directly in front of the almost barren rosewood table which Frazer apparently used as a desk. Frazer's back was to the window and the glare from the window made it hard to see his face. Before she had time to respond, take in her surroundings, or express any thoughts, Frazer got to what Cappetta presumed was the point. "I understand you're handling a couple of lien claims against Holly Building Supplies where Regency Homes is the general?" When Cappetta nodded her affirmance, Frazer continued: "From what Dave Moore tells me, the real problem is Regency. Building suppliers beside Holly are now falling substantially behind on six other Regency projects, and potentially we could be talking about losses in excess of $750,000. What I'd like your thoughts on is whether law suits and liens on these six other projects make sense or whether we should be talking about some other approach. Also, I'd like your frank opinion on how carefully you think Moore is monitoring the accounts. As you probably know, our sales people are always complaining that Moore is too tight on his credit limits, but I'd like your views. We've got to keep selling; without sales we're not going anywhere. On the other hand, we've got to maintain some control over the amount of credit we let these suppliers have. You've worked on the Holly matters and several others, so your thoughts about how closely Moore monitors our accounts is important to me. I want to know whether, in your judgment, Moore is becoming too solicitous toward the sales department and has become too liberal in giving credit. Also I need your ideas about whether litigation is the best course at this time on each of the Regency matters."

Mrs. Howard arrived on time, gave her name to the receptionist and took a seat in the waiting room. Before she had done much more than pick up a magazine, she heard her name, and Ms. Spriggs was introducing herself: "Mrs. Howard, I'm Elizabeth Spriggs; won't you come in?" As the women entered the twelfth floor office, Ms. Spriggs suggested that the older woman would be comfortable in the rather straightbacked chair that stood in front of a large oak desk. Ms. Spriggs then moved to the high back leather swivel-chair that clearly belonged to the desk's proprietor. Seated and secure, Ms. Spriggs began. "Mrs. Howard, how might I help you?" Although she was expecting a question of this sort, the older woman hesitated as she thought: "How can I be helped? What help is there for a 47-year-old woman whose husband has announced that after 19 years of marriage he is leaving to share an apartment with his 28-year-old lover? Sure there is the question of my legal rights. Certainly I need to know what kind of fmancial and child support I am entitled to. But will rights restore Harry's love? Will rights take away the pain, the hurt, the humilia-

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tion? Will they help me find my way as a single person? How can this lawyer help? "

Many lawyers (perhaps Ptolemeians) would tend to say that Kretsky, Frazer and Howard, have a lease problem, a collection problem and a dissolution problem respectively. 10 However, as each story suggests, the unsettled matters people bring to lawyers raise many questions in addition to pristine legal ones. Business people such as Kretsky are not worried merely about what provisions must be included in a lease to make it "legal". Kretsky's overriding concern is to conclude the deal in a way that allows the company's upholstery operations to go forward in a timely manner. As a result, he appears willing to forgo some legal protections in order to make the deal. He wants to keep down costs and conclude the lease so that he can move on to other affairs of the business. Nonlegal concerns are as prevalent in litigation as they are in planning matters such as Kretsky's. Corporate officers such as Frazer are not concerned merely with the corporation's rights in potential lawsuits. Frazer, like many potential litigants, wonders whether it makes sense to sue. This arguably legal concern is enmeshed with broader business worries. Frazer is also uneasy about West Coast's credit practices and the adequacy of the company's credit manager. Individual clients as well face a host of nonlegal concerns. Think back to Mrs. Howard. What nonlegal concerns is she likely to have? As the three hypotheticals illustrate, nonlegal ramifications typically are economic, social and psychological in nature. Often there also will be moral, religious and/ or political consequences. Consider, therefore, what each of these varying consequences entails. Economic Consequences: Economic ramifications are the monetary effects of a course of action. Almost every action will produce some economic ramifications. Legal fees, damages and time spent preparing to testify are typical economic ramifications of litigation. In planning matters, typical economic consequences include time spent in preparing for negotiation, legal fees and implementing the selected course of action. For example, Kretsky's company surely will be economically affected by the amount of rent, taxes, and maintenance costs the lease requires it to pay. Social Consequences: Social ramifications are those that affect a client's relations with others. The situations of Kretsky, Frazer and Howard all demonstrate this kind of consequence. K retsky's actions will influence his company's future relationships with the prospective landlord and Kretsky's future relationship with the board of directors. 11
10. Lawyers, whether litigators or plan ners, tend to think of themselves as han dling matters that fall into various substantive law categories. For lists of the common substantive subject areas that lawyers use in describing their work, see Laumann & Heinz, supra note 1; J. Carlin, Lawyers On Their Own 41- 122 (1962). 11. An attorney representing a corporation is likely to find the situation fraught with conflicts of interest. EC 5-18 of the Model Code states that corporate counsel

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Frazer's action, too, will impact on numerous relationships including Moore, West Coast's board of directors and people in the sales department. Finally, Mrs. Howard's choice will influence her future relations with her spouse, her children and her friends.
Psychological Consequences: Psychological ramifications are the internal personal feelings that clients experience as the result of the choices they make. For example, some litigation clients feel cowardly and cheated when they give up certain claims as part of a settlement. Other clients feel anxious as long as a case remains unresolved. Similarly, some business clients are elated if their economic power produces a fmal deal in which the price is better than the market price. Others are happiest when a final agreement benefits both parties economically. 12 Moral, Political and Religious Consequences: 13 Actions may create results or reactions that implicate clients' moral, political and/or religious values. That is, choices often arouse feelings based on clients' underlying personal values. For example a landlord's decision not to evict a tenant during December may emanate from the landlord's belief that people should not be made homeless during the holiday season.

Moral, political and/or religious values are often intertwined with one or more other nonlegal concerns. It is probably rare that a client makes a moral, political and/ or religious decision that is devoid of economic, social and/or psychological overtones. For example, if a client is considering whether to leave the bulk of his estate to a son who has repeatedly squandered money, economic considerations might lead the client to disinherit the son. However, if the client's moral value is that blood ties outweigh all other considerations, the client may feel morally obligated to leave his estate to his son.
"owes his allegiance to the entity and not to a stockholder, director, officer, employee, representative, or other person connected with the entity." However, several authorities have come to different conclusions. Some assert that the corporation is composed of its stockholders and they are therefore the client. E. Sloter & A. Sorenson, "Corporate Legal Ethics-An Empirical Study: The Model Rules, the Code or Professional Responsibility and Counsel's Continuing Struggle Bet ween Theory and Practice," 8 J. of Corp.Law 601, 632 (1983), relying on Garner v. Wolfinbarger, 430 F.2d 1093 (5th Cir.l970) and SEC v. National Stucknt Marketing Corp., 457 F .Supp. 682 (D.D.C.1978). Others suggest that the client is the board of directors. S. Lorne, "The Corporate and Securities Advisor, the Public Interest, and Professional Ethics," 76 Mich.L.Rev. 425, 436 (1978). Still others feel that management is the client. M. Riger, "The Lawyer-Director-'A Vexing Problem,''' 33
Bmder Bergman & Pnce. lwyrs ~ Coun ACS. 2

Bus.Law 2381, 2384 (1978); accord City of Philadelphia v. Westinghouse Elec. Corp., 210 F.Supp. 483, 485 (E.D.Pa.l962). A study by Sloter and Sorenson found that 41% of the attorneys surveyed felt that management was the real client of the attorney. Sloter & Sorenson, supra, at 712. For an excellent review of the conflicts of interest that arise when representinK corporate clients, see W. Sogg & M. Solomon, "The Changing Hole of the Attorney with Respect to the Corporation," 35 Cleve.St.L.Rev. 147, 154 (1986-87). 12. The categories of economic, social and psychological are certainly not water tight. If a client believes that a decision will cause a relative to think poorly of him or her, is the ramification social, psych<>logical or both? 13. Special thanks to Carrie MenkelMeadow, who has continually stressed the importance of including these factors in the analysis of clients' problems.

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3. ALL SOLUTIONS PRODUCE NONLEGAL CONSEQUENCES

Had Sir Isaac Newton gone to law school, his Third Law might have been, "For every solution, there are both legal and nonlegal consequences." Thus, you must help clients craft solutions that respond to both types of consequences. 14 At worst, failure to do so may leave a client worse off than before she or he sought your advice. At best, your oversight will leave a problem only partially resolved. For example, assume that in West Coast Timber's matter, Cappetta devises a brilliant legal theory which gives West Coast claims against the other building suppliers who have fallen behind on the Regency projects. Based on this theory, Cappetta advises Frazer to sue each of these suppliers. West Coast ultimately prevails, but (a) can only partially recover its losses; (b) incurs substantial legal fees; (c) alienates other building suppliers who are West Coast customers; and (d) incurs "opportunity costs" because West Coast employees devoted significant time and energy to the lawsuit instead of to other business affairs. Cappetta's advice may have been "legally sound," but it has arguably left West Coast in a worse position than when it started. Had Cappetta and Frazer thought through the potential nonlegal ramifications before West Coast instituted suit, West Coast might have avoided at least some of these adverse consequences.

4. THE PROMINENCE OF NONLEGAL DIMENSIONS

Your intuitive sense may lead you to readily agree that problems have nonlegal dimensions. What may surprise you, however, is the notion that nonlegal concerns often outweigh legal ones in a client's calculus of what solution to adopt. For example, Frazer might choose to forgo litigation in order for West Coast to maintain good relations with its other building supply customers. Similarly, Mrs. Howard's decision to press all possible property claims might grow primarily out of her desire to punish a husband who she thinks has treated her and the children unfairly. Finally, Kretsky might forgo negotiating for provisions such as an option to renew the lease in order to conclude the deal quickly. In the next subsections, examine the reasons that nonlegal concerns often predominate in clients' thinking.
14. Sometimes. legal and nonlegal consequences are virtually indistinguishable. For example, you mjght view the possibility of a client's recovering damages either as a legal or nonlegal economic consequence of ftling suit.