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Trinidad: The ‘fool for a client’ rule (revised)

Pro Bono Publico
Matthew Laurel Trinidad

I grew up not too far from the Garden of the Gods in Colorado Springs. Some might consider the place to be “touristy,” but the monolithic spires within the Garden are, in fact, a true natural beauty.

If you spend any significant time in the Springs, you will find that a particular item tends to pop up in the local news with surprising regularity. An unequipped climber, usually a weekender from Texas or Nebraska, scrambles up one of the Garden’s rock formations, only to be faced with a perilous down-climb. An image of the rescue, or the aftermath of a serious fall, invariably makes the paper.

The stranded climber, who either overestimated his abilities or underestimated the risks, may have been on the mind of the person who coined the phrase, “One who acts as his own attorney has a fool for a client.” This phrase has been used for more than a century to encourage self-helpers to hire a lawyer. Despite what I’m about to say, I think the fool-for-a-client rule still applies today.



But I also think that we are living under a new paradigm. The barriers to the specialized knowledge that was once the exclusive domain of the lawyer are eroding. Laypersons, with increasing regularity, are competently achieving their legal objectives without a lawyer.

The consequences for making a legal misstep haven’t changed, so anyone who has the means to retain counsel, but who is nevertheless considering his or her own legal representation, should perform an honest evaluation of the risks and rewards of self-help.

It’s easy to incorporate, prepare a simple will or lease, or address a number of pro-forma legal issues using online legal services. Meanwhile, state government, with the aid of uniform laws committees and bar associations, are simplifying the law and preparing forms and instruction manuals that are free, online, and effective.



Yet, the consequences for making a legal misstep haven’t changed, so anyone who has the means to retain counsel, but who is nevertheless considering his or her own legal representation, should perform an honest evaluation of the risks and rewards of self-help. The following questions may assist in that regard:

Am I willing and able to closely follow written instructions (i.e. the materials and processes provided by a self-help resource)? This isn’t a question of intelligence. Many smart people see the big-picture but find the details to be tiresome and easy to ignore. A failure to follow details in legal work can have serious consequences.

Are the stakes too high? A legal matter may have a seemingly simple self-help solution, but high stakes amplify the effects of making a rookie mistake.

How good are the self-help resources? Forms and instructions approved by the Colorado Supreme Court (http://www.courts.state.co.us/) are very good. Online legal services sell canned legal documents, but they don’t offer individualized legal advice, and they aren’t responsible if the use of their product goes awry. That being said, to the extent that the matter requires form-driven, commoditized legal papers, an online retail service may offer a viable solution.

Does the matter involve a specialized area of the law? Specialties require trade craft. Pitfalls are common and hard to spot. Few self-help aids exist. Online legal services can’t effectively operate in specialized fields, as the necessary economies of scale are impossible to achieve.

Does the matter involve the contractual or fiduciary relations of two or more parties? Formalizing custom agreements and nuanced legal relationships between and among parties is lawyer work. This consideration is especially true with respect to fiduciary relationships (i.e., instances where one person manages property or makes decisions on behalf or for the benefit of another). In some cases, fiduciary duties may require the fiduciary to retain legal counsel.

Does the matter involve adversarial claims or proceedings? Taking aside small claims, which typically must be litigated by the parties without the aid of a lawyer, proceedings before state, federal, and administrative tribunals are the domain of experienced trial counsel.

It should not go without mention that a lawyer and client may divide labor. I am happy to review a will, lease or contract prepared by the client or an online service (hopefully before it’s too late to tweak a few things, if necessary). Meanwhile, court rules now allow for the “unbundling” of legal services, enabling lawyers to provide limited, this-but-not-that assistance in litigation cases.

In light of these considerations, it’s OK to be pennywise, especially now that certain keys to the kingdom of the law are within the reach of the layperson. Just don’t fail to consider the potential for pound-foolery.

Matthew Laurel Trinidad is a transactional attorney at Karp Neu Hanlon PC. His practice emphasizes business law, estate planning and probate. Contact him at mlt@mountainlawfirm.com, (970) 945-2261, or visit http://www.mountainlawfirm.com.


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