LEGALESE — When Shouldn’t You Take Your Lawyer’s Advice?

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Lately, I’ve been talking a lot about attorney/client relationships.  I’ve talked about the obligations of attorneys, what non-attorneys can’t do, and what happens if you don’t pay your lawyer.  This week, I am going to talk about what you should (and shouldn’t) do with your lawyer’s advice.

First and foremost, you should only hire an attorney that you trust.  Lawyers are often asked very important questions about what people should do with their lives in general, and their cases in particular. We are tasked not only with giving legal advice, but personal advice when it involves trial strategy.  (How would the judge look at it if you….)  Often, you need to know what you can and can’t do.  For example, let’s say you are getting divorced, and as a part of the standing order you can’t interfere with insurance coverage for your soon-to-be-ex-wife.  Does this mean that when renewal time comes around that you can’t switch insurance companies to get a better rate?  When dealing with visitation, is the ‘first weekend of the month’ the weekend in which Saturday is the first, or is the first weekend the next weekend, when the Friday is included in the month’s date?  Does bringing your long term boyfriend to Disney with your kids (and his) violate the terms of your divorce decree?

Sometimes it is very tricky.  Let’s say you know – just know – that your ex has resumed his meth habit but you don’t have any evidence beyond your very accurate gut instinct.  You don’t want to let your kids go for visitation, and you call your attorney to ask what you should do.  And let’s say your attorney tells you that your primary obligation is to keep your children safe, and you shouldn’t let your children go.  Your ex then files a contempt, and presents a hair follicle test that shows he was clean.  The judge is then angry at you, because you withheld your children from their father with no evidence.  As a remedy, the judge wants to give your ex some extra weeks in the summer, and wants you to pay his attorney’s fees.  Or – to make a more extreme example – let’s say your ex won’t give you back your diamond tennis bracelet, even though the judge told him he had to. You ask your lawyer what to do, and he says, “You still have a key – go in to his apartment and get it!” and you do, and then you find yourself facing burglary charges.

“But,” you say, “I just did what my attorney told me to do!”

The law says that’s not an excuse.  O.C.G.A. 15-19-7 says that “[c]lients shall not be relieved from their liability for damages and penalties imposed by law on the ground that they acted under the advice of their counsel but are entitled to redress from their counsel for unskillful advice.”  This means that you are still responsible for any actions you take, even if the only reason why you did what you did was because your attorney advised you to do it.  However, you may be able to get your money back from your lawyer if it was your lawyer’s bad advice that got you into the mess.  This does not mean that the lawyer has to pay your judgment for you – it means that you have to pay your judgment, but you may be able to get the money back from your lawyer after you pay it.  How exactly that happens is not clear, but I would imagine that the State Bar Committee on Fee Disputes is a good place to start.

As a general rule, you should follow your attorney’s advice, and you should only choose and hire an attorney that you think will give you good advice.  Just make sure you understand that ultimately you bear the responsibility for what you do, no matter who told you to do it.

 

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