MEMORANDUM OF LAW

ATTORNEY'S DUTY TO ADVISE

One of the elements of an attorney's duty of disclosure is the duty to advise the client. The duty to advise acknowledges that clients usually do not understand the intricacies of the law nor the judicial process. Lawyers, in turn, are privileged to represent clients only if they are licensed and they adhere to ethical rules. Thus, the duty to advise is a duty to teach the client to intelligently direct strategic choices.

"We conclude the Canons of Ethics impose upon lawyers hired by the insurer an obligation to explain to the insured and the insurer the full implications of joint representation in situations where the insurer has reserved its rights to deny coverage."1

"One of an attorney's basic functions is to advise. Liability can exist because the attorney failed to provide advice. Not only should an attorney furnish advice when requested, but he or she should also volunteer opinions when necessary to further the client's objectives."2 "The duty of a fiduciary embraces the obligation to render a full and fair disclosure to the beneficiary of all facts which materially affect his rights and interests. Where there is a duty to disclose, the disclosure must be full and complete, and any material concealment or misrepresentation will amount to fraud. [A]lthough the defendant makes no active misrepresentation, this element is supplied by an affirmative obligation to make full disclosure, and the non-disclosure itself is a 'fraud.'"3 "[T]he attorney may still have a duty to alert the client to legal problems which are reasonably apparent, even though they fall outside the scope of the retention. The rationale is that, as between the lay client and the attorney, the latter is more qualified to recognize and analyze the client's legal needs. The attorney need not represent the client on such matters. Nevertheless, the attorney should inform the client of the limitations of the attorney's representation and of the possible need for other counsel."4