Case Planning

3.16.4.1. Is there evidence in the file that the student attorney developed a course of action for handling each matter that relates material facts to legal issues raised by the client’s problem, identifies applicable law and available remedies, and enables the client and attorney to make knowledgeable decisions about the means to pursue the client’s objectives at each stage of the representation, with full consideration of available resources and of the risks and benefits of each option?

3.16.4.2. Did the student attorney take all the necessary steps to implement the case plan? See infra § 3.17 et seq.

3.16.4.3. Was the client’s problem considered in relation to other similar problems for assessment of whether a class action would be an appropriate strategy?

Commentary

Evidence of case planning should include memoranda of facts and law in the case file, copies or summaries of communications to the client, investigators, and experts that presents the legal and factual theories of the case at various stages of preparation. Chronology logs and “to do” lists may also evidence case planning.

Resources

ABA, Standards for Providers of Civil Legal Services to the Poor Std. 4.4 (2002); ABA, Standards for the Provision of Civil Legal Aid Std. 7.7 (2006).

3.16.5. Counseling

3.16.5.1. Did the student attorney effectively counsel and advise the client throughout the representation?

3.16.5.1.1. Did the attorney reach a common

understanding with the client of the nature of the legal problem and the client’s objective in seeking legal assistance?

3.16.5.1.2. Did the attorney recognize the decision points on which client input and decisions were needed?

3.16.5.1.3. Did the attorney identify and evaluate the means available for achieving the client’s objective?

3.16.5.1.4. Did the attorney assure that the client

understood the advantages, disadvantages, and potential risks of each option and effectively participated in determining the means by which the client’s objective was pursued?

3.16.5.1.5. Predicting legal consequences.

3.16.5.1.5.1. Were the attorney’s predictions of consequences appropriately tentative and contingent?

3.16.5.1.5.2. Where the attorney lacked sufficient experience to make accurate predictions of legal consequences, did the attorney gather additional data and/or consult with more experienced colleagues and/or faculty supervisors before communicating with the client?

3.16.5.1.5.3. Does the program or clinic collect and use available data (such as percentage of guilty

pleas before a certain judge resulting in probation) to inform predictions of outcomes?

3.16.5.1.5.4. Does the program/clinic have access to and use, when appropriate, software that provides a framework for making predictions in cases with several independent variables?

3.16.5.1.6. Was the counseling appropriate in terms of scope and depth with respect to the needs, abilities, and desires of the client?

3.16.5.1.7. Was the client offered a collaborative model of counseling?

3.16.5.1.8. Did the attorney prepare written materials such as charts, tables, or fact/law summary letters, where appropriate, to help the client understand the range of issues, alternatives, and consequences?

3.16.5.2. Did the attorney adequately record any

disagreements between the client and the attorney during the course of the representation?

Commentary

There should be evidence in the case file that the lawyer helped the client to identify and clarify his or her interests, values, and priorities, to identify alternative courses of action, to consider legal and non-legal considerations, such as the economic, social, and psychological consequences, and the interests of third parties, that may follow a course of action needed make decisions.

Sophisticated clients may require little assistance in reviewing options and making decisions. Most clients who come to law school clinics may have little experience with legal institutions and may require more information and counseling.

Keeping a record of disagreements between the attorney and the client can be helpful in defending against disciplinary and malpractice claims brought by a client dissatisfied with the outcome of the matter who claims that the attorney acted inappropriately or contrary to the client’s wishes. Where the client has ceded broad decision making to the attorney during representation, the lawyer is advised to put this delegation of authority in writing, preferably in a document that is signed by the client.

The case file should contain evidence that the attorney prepared a summary of the various alternatives and their respective consequences, before, during, or after the counseling session with the client but before the client is asked to make a final decision. A summary document is more appropriate when the decision is more complex, has more variables, and when the client can benefit from a graphic representation of the information needed to make a final decision.

The attorney must use his or her best judgment with each individual client and in each instance where decision making by the client is called for whether to use written aids, but if a review of a number of case files in the program or clinic fails to yield any evidence that such aids are used, it must be presumed that attorneys are not encouraged to use writings in this way.

Resources

ABA, Standards for Providers of Civil Legal Services to the Poor Std. 4.5 (2002); ABA, Standards for the Provision of Civil Legal Aid Std. 7.8 (2006); ABA/ALI, Achieving Excellence in the Practice of Law §6.5 (2d ed. 2000).