변호사 윤리로서의 설명의무

Abstract

When a professional relationship exists, a lawyer as a representative of a client owes a wide range of duties. As a whole, those duties are called fiduciary duty. Between attorney and client, the one thing most important is keeping the client informed, following the client’s lawful instructions where the client is empowered to make decisions. The lawyer has a duty to keep the client reasonably informed about the status of the matters, provide information when requested, and give the client sufficient information so that the client can make decisions about the representation where necessary. This could be understood as the expression of the client’s decision-making autonomy in the allocation of authority between the attorney and the client. So when anything of importance happens in the case the lawyer has a duty to communicate it to the client. If the lawyer receives a check in settlement of the client's case, or is informed by the court of an order granting a motion for a new trial, the lawyer must inform the client of this development. In that situation, only the client has the right to make major decisions respecting the matter, such as whether to settle a civil case or whether to plead guilty in a criminal prosecution. The lawyer has to communicate with the client where these decisionsare concerned. The lawyer is also required to consult with the client as to the means by which the client’s objectives are to be pursued. If the decision is important enough, the lawyer may be required to consult with client before taking action, unless there is some kind of emergency or other need for a quick decision, such as an unexpected turn of events at trial. The feasible ways of the duty are made by oral, document, telephone, e-mail, fax or any admittable one. The proper extent to inform ranges up to various things on facts or legal matters. This duty might continue even after the termination of the relationship in several sort of cases. A lawyer representing a party in a civil lawsuit must inform his client of an offer of settlement made by the other side. The client alone has the authority to decide whether to settle or not. A lawyer is subject to discipline for the failing to do so. At the same time the lawyer may be exposed to a significant malpractice judgement if the lawyer failed to inform the client of a settlement offer and the client lost at trial. The duty is well linked up with the other fiduciary duties such as a duty not to refuse to be a representative for any poor client, a duty keeping confidence or a duty about conflicts of interest.