Document Type

Article

Publication Date

1991

Abstract

In one influential view, the lawyer's most basic function is to enhance the autonomy of the client. The lawyer does this by providing the information that maximizes the client's understanding of his situation and minimizes the influence of the lawyer's personal views.

This autonomy or "informed consent" view is often contrasted with a paternalist or "best interest" view most strongly associated with official decisions about children and the mentally disabled. Here the professional's role is to make decisions for the client based on the professional's view of the client's interests.1

I am going to argue against the autonomy view that any plausible conception of good practice will often require lawyers to make judgments about clients' best interests and to influence clients to adopt those judgments. The argument, however, does not amount to an embrace of paternalism. The issue of paternalism remains moot until we can clearly distinguish a judgment that a client choice is autonomous from a judgment that a choice is in the client's best interests, and my argument is that in practice we often cannot make such distinctions. The argument takes the form of an illustration from my own experience followed by an analysis of it.

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