Vt. R. Prof. Cond. 2.1
In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors that may be relevant to the client's situation.
Comment
Scope of Advice
[1] A client is entitled to straightforward advice expressing the lawyer's honest assessment. Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront. In presenting advice, a lawyer endeavors to sustain the client's morale and may put advice in as acceptable a form as honesty permits. However, a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.
[2] Advice couched in narrow legal terms may be of little value to a client, especially where practical considerations, such as cost or effects on other people, are predominant. Purely technical legal advice, therefore, can sometimes be inadequate. It is proper for a lawyer to refer to relevant moral and ethical considerations in giving advice. Although a lawyer is not a moral advisor as such, moral and ethical considerations impinge upon most legal questions and may decisively influence how the law will be applied.
[3] A client may expressly or impliedly ask the lawyer for purely technical advice. When such a request is made by a client experienced in legal matters, the lawyer may accept it at face value. When such a request is made by a client inexperienced in legal matters, however, the lawyer's responsibility as advisor may include indicating that more may be involved than strictly legal considerations.
[4] Matters that go beyond strictly legal questions may also be in the domain of another profession. Family matters can involve problems within the professional competence of psychiatry, clinical psychology or social work; business matters can involve problems within the competence of the accounting profession or of financial specialists. Where consultation with a professional in another field is itself something a competent lawyer would recommend, the lawyer should make such a recommendation. At the same time, a lawyer's advice at its best often consists of recommending a course of action in the face of conflicting recommendations of experts.
Offering Advice
[5] In general, a lawyer is not expected to give advice until asked by the client. However, when a lawyer knows that a client proposes a course of action that is likely to result in substantial adverse legal consequences to the client, the lawyer's duty to the client under Rule 1.4 may require that the lawyer offer advice if the client's course of action is related to the representation. Similarly, when a matter is likely to involve litigation, it may be necessary under Rule 1.4 to advise the client of alternative forms of dispute resolution that might reasonably be pursued to attempt to resolve the legal dispute or to reach the legal objective sought. Common forms of ADR include arbitration, mediation, and early neutral evaluation. Cf. V.R.C.P. 16.3. A lawyer ordinarily has no duty to initiate investigation of a client's affairs or to give advice that the client has indicated is unwanted, but a lawyer may initiate advice to a client when doing so appears to be in the client's interest.
Vt. R. Prof. Cond. 2.1
The Comment to V.R.P.C. 2.1 is amended to conform to changes in the Comment to Model Rule 2.1, incorporating in Comment [5] language referring to advice about ADR methods that was not in the original Model Rules Comment. See Reporter's Notes to V.R.P.C. 2.1 (1999).
The ABA Reporter's Explanation is as follows:
TEXT:
No change is proposed to the text of this Rule.
COMMENT:
[5] The Commission has proposed an addition to this paragraph to remind lawyers that informing a client of various forms of dispute resolution may be required under Rule 1.4, i.e., when a different form of dispute resolution would constitute a reasonable alternative to litigation. This addition is proposed in recognition of the increasingly important role being played by alternative dispute resolution in litigation. [The language adapts that of the original V.R.P.C. Comment. See above.] The remaining changes are for clarification and style.