Citation

Bennett KM. Washburn Law J. 2015; 54(3): 725-759.

Copyright

(Copyright © 2015, Washburn University, School of Law)

DOI

unavailable

PMID

unavailable

Abstract

When an attorney and the client meet for the first time the attorney will typically ask several questions designed to understand the clients legal problems. The attorney asks such questions in order to know how to address the clients individual needs. For example, the client asks an attorney to represent him in a negligence suit resulting from an accident that occurred on the clients property, the attorney may ask several questions about the client's property in order to determine whether anything else on the property might pose a foreseeable risk of injury. One question the attorney might ask is whether the client keeps any firearms on the property. While questions are not necessary to defending the current lawsuit, such questions reflected attorney's responsibility to use his or her professional judgment to counsel clients about how to proactively manage potential liabilities.

Suppose that the state government passes a law prohibiting attorneys from asking their clients whether they own guns or keep firearms on their property, reasoning that the law is necessary to protect the privacy and second amendment rights of its citizens. Attorneys who violate the law could face disciplinary actions, including revocation of the attorneys license. Fearing discipline, the attorney does not ask her client if he keeps guns on his property. Years later, the attorney learns that the client is facing a second lawsuit. A child visiting the client's property suffered injuries when she accidentally shot herself in the leg after finding the clients unsecured gone in a drawer. The attorney was mortified to learn that she had not requested sufficient information to help her client manage the risks associated with keeping a gun on his property. However, the new law did not leave the attorney with a good option–she could either give her client incomplete advice and risk malpractice, or give...