In this my last column for the JOURNAL OF PASSTHROUGH ENTITIES, it seems appropriate to return to a first principle of serving as an attorney, namely clear identification of who is the client. A reasoned determination of who is the client serves a number of important roles, most particularly the core question of whose interest the attorney is charged to assess, protect and advance. “Where you stand” (i.e., whose interest you will advance) “depends on where you sit” (i.e., to whom do you owe your loyalty). From the opposing perspective, identifying who is the client necessarily identifies a different class, namely those who are not clients and whose interests the attorney is not bound to either protect or advance.
Problems arise when attorneys fail to carefully identify who is and is not the client. These failures result in litigation that at least anecdotally would appear is becoming more and more common. There is an adage that “the second worst thing that can happen to you is that you win a lawsuit.” This is particularly true in the context of a suit brought by one who believes he or she was the attorney’s client. The attorney is now in the position of needing to defend him/herself. True, typically the attorney’s insurer will retain counsel to provide a defense, but few and far between are the attorneys who will be comfortable turning over the action entirely to that counsel. Rather, the attorney charged with misconduct will want to be intimately involved in defending the action. There’s certainly nothing wrong with that attitude, but it must be recognized that every hour the attorney is focused upon defending his or her own conduct, he/she is not performing services on behalf of a paying client. As such, the attorney may prevail in the action only with significant personal costs and, of course, there is always the possibility that the attorney will not prevail.