GPSOLO October/November 2010
How Far Should You Go for a Client?
By Brian L. Tannebaum
As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.—Preamble to the ABA Model Rules of Professional Conduct
Every lawyer has seen it. The 5:00 p.m. fax, the 6:30 p.m. e-mail, the setting of a hearing or deposition without coordinating with opposing counsel, the attempt to prejudice juries and the public during litigation, the threat of a bar grievance to force settlement. It has become far too common in the practice of law.
Civil Law vs. Criminal Law
To the offense of those who ignore the truth, this discussion must begin by separating the criminal and civil bars. As a lawyer recently said, “civil law pushes you to go to places you don’t want to go. There’s nothing ‘civil’ about civil law. Criminal law is the most civil type of practice.”
For criminal defense lawyers, opposing counsel is a prosecutor. This prosecutor works in an office with all the other prosecutors in that jurisdiction. They talk, and so does the defense bar. Inherent in criminal practice is dealing with many of the same lawyers and judges on a daily basis. Any hardball, “overzealous” tactic will be broadcast throughout the prosecutor’s office within a few hours, the judges will all be talking about it at lunch, and as things go today, it will be on the local blog as “anonymous” starts a new post with the words, “Anyone see what happened in court today?”
Those who practice criminal law know that the prosecutor they abuse today will be assigned their new case tomorrow. Or worse, a different prosecutor assigned to the can’t-be-trusted defense lawyer will proceed cautiously and be unwilling to extend courtesies because she’s “heard” about this lawyer. For defense lawyers, too, the fact or mere “rumor” about a prosecutor being less than ethical can resonate throughout the courthouse.
Civil practice is different. Civil disputes revolve around money, not liberty. Nothing causes a nasty fight like a theoretical pile of money on a conference table. Also, civil lawyers don’t usually deal with the same opposing counsel over and over again, so there is less of a concern that a bad experience with opposing counsel on one lone case will matter all that much in the future.
Criminal lawyers spend their days in court. Civil lawyers work to avoid court. Civil lawyers use the threat of court to settle. Criminal lawyers use court itself to settle. These are not criticisms; they are the reality of the practice of law. Civil lawyers would agree.
Rules of Professionalism and Civility
Whether in the practice of civil or criminal law, a lawyer’s behavior is governed by the rules of professional conduct. Evidence of the diminishing role of professionalism beyond the rules is that it is no longer good enough to have state or national bar rules governing ethics alone; today, many local bar associations add their own “codes of professionalism” directing lawyers to act courteously and friendly to each other, as well as to third parties and judges.
While we publicly slap ourselves on the back and pride ourselves in the creation of these professionalism codes, we are only acknowledging that incivility and unprofessionalism are part of our everyday discourse. We acknowledge that we need to have in writing the manner in which we treat each other and that we are professionals who need supervision to behave.
Bar associations throughout the country continue to establish codes beyond the standard ethical rules. In 1989 the Los Angeles County Bar Association established “Litigation Guidelines,” with a blunt preamble:
Many believe that relations between lawyers have so deteriorated that our profession nears a crisis—one that not only implicates how we deal with each other but threatens our usefulness to society, the ability of our clients to bear the cost of our work and the essential values that mark us as professionals.
The guidelines go on to include directives such as, “A lawyer should advise clients against the strategy of granting no time extensions for the sake of appearing ‘tough.’”
Not to be outdone, the Boston Bar Association has its own “Civility Standards for Civil Litigation,” including the declaration that a lawyer should “be guided by the principle that representation on behalf of his or her client ought to be characterized by good faith and honesty.”
The Standards of Courtesy and Decorum for the Courts of Wisconsin tell lawyers to “abstain from knowingly deceiving or misleading another lawyer or the court” and to “act in good faith and honor promises and commitments to other lawyers and to the court.”
Under the Utah Standards of Professionalism and Civility, lawyers “shall adhere to their express promises and agreements, oral or written, and to all commitments reasonably implied by the circumstances or by local custom.”
This is a sad commentary on our profession. To express pride in these “civility” codes is to admit that even basics of human courtesy must be legislated into the practice of law. I am embarrassed by them. All of them. That we look to the formal rules for guidance on how to behave and everything not mentioned there is fair game is a large part of why we “enjoy” the reputation we have today.
Toward a Personal Code
I have my own code of conduct, and I suggest each member of our profession have one as well. I believe the best way for lawyers to deal with hardball tactics of opposing counsel is to let them know at the outset of the case how you practice law.
I give all lawyers I am dealing with for the first time the benefit of the doubt, regardless of what I’ve been told about them. I start with the premise that new opposing counsel are normal human beings and will act with courtesy and professionalism. My first communication with them will be a phone call, not a “lawyer letter,” regardless of whether they initiate communication with a letter or demanding e-mail. I will coordinate all hearings and depositions with them and will not place unreasonable demands on their time that will only cause me to be brought before a judge to hear that I am being unreasonable. I will cancel any hearing or deposition if opposing counsel is sick, has an emergency, or just calls and asks if it can be reset because something “came up.” I do these things because I may need and probably will need that same courtesy some day.
Outside of my bar defense practice, which is more like criminal defense in the sense that opposing counsel is a small group of the same lawyers, my civil practice is limited to defending lawyers in legal malpractice cases. So when hardball tactics are used against me, I notice. I cringe. Recently, I received a notice of hearing in a legal malpractice case. I called the lawyer to ask why he didn’t coordinate with me. His response: “Most lawyers don’t coordinate hearings with me, so I figured. . . .” Then his voice trailed off, and he apologized. Although he initially seemed surprised that I had an issue with his tactic, he realized that doing this, based on what most other lawyers do, was wrong. On a case where my criminal client was attempting to settle a civil component of the case, the civil lawyer sent me an e-mail at 6:30 p.m. beginning with a list of documents he was demanding “by tomorrow morning.” He never thought to write, “do you think you can get these documents to me by tomorrow morning?” He just demanded.
These tactics are not unethical. None of them are mentioned in the ABA Model Rules of Professional Conduct. Even in the section dealing with “fairness,” there is not a single rule that governs these tactics.
We as lawyers are taught to “push the envelope,” to be “zealous,” to do everything within the bounds of ethics to represent our clients.
And I agree. A lawyer who doesn’t zealously represent the client is doing a disservice to the client and the profession. But there is zealous representation, and there is incivility and unprofessionalism. I believe the basics of incivility are taught in law schools and then, in turn, to associates by their “more experienced” colleagues.
In law school, future lawyers are asked ethical questions that test the bounds of reasonableness. They— we—are taught black letter law, and black letter deadlines. In law school one learns that an answer to a complaint is generally due in 20 days. Students are not taught the concept of agreeing to delays in deadlines out of courtesy, nor are they taught that the best lawyers resolve cases as ladies and gentlemen, not as warriors on a battlefield with guns blazing. Professional responsibility classes concentrate on the rules, not the essence of crafting a reputation beyond the rules. Creating a personal code of ethics is only for those lawyers who wish a reputation other than that of “warrior” or “tough and aggressive.”
The problem in our profession will always be that the lawyers who cause bar associations to write codes of professionalism don’t read them, don’t go to continuing legal education seminars on ethics, and certainly aren’t reading this article. No lawyer who entertains a discussion about these hardball tactics is one who engages in them.
This problem isn’t limited to U.S. lawyers, either. The article “Uncivil Law” from Canadian Lawyer magazine ( www.canadianlawyermag.com/Uncivil-law.html) reports that in Ontario.
The Advocates’ Society compiled a 16-page set of guidelines, Principles of Civility for Advocates. There were calls for law schools to do a better job of teaching courteous conduct and for law firms to provide better mentoring. Judges and leaders in the legal profession pleaded with their peers to reign in their tempers, hold their tongues and restore the sense of collegiality and dignity that the legal profession has long prided itself on possessing.
Now, three years later, people are beginning to wonder whether anyone was listening. Family court lawyers are still complaining about clients being bullied and berated by opposing counsel. The consensus among litigators is that lawyers generally manage to keep the lid on any proclivity to incivility in open court, but the mask comes off in pre-trial discoveries when the judge isn’t watching.
The call for civility has sounded for years, yet we seem to be moving away from the goal of making the bar a place where professionalism reigns, where ethics and courtesies go hand in hand, where clients are advised that lawyers are not there to take out the client’s desire for revenge or justice against the opposing party. The lawyer is the buffer between the client and the dispute. The lawyer’s job is to educate the client on the possibilities of success and advocate within the bounds of ethics and professionalism. These two concepts are not mutually exclusive.
I imagine the lawyers reading this are saying, “Okay, we know there are jerks in our profession, so what’s your suggestion for how to handle these bad apples?”
A personal code of ethics. A code that is in writing and sent to each opposing counsel in every case you handle. I once received one, from a prosecutor. It advised how to reach him, when he was normally available for depositions, how he handled discovery issues, and other aspects of his “way of doing things.” When I first received it, I took offense. Was he trying to tell me how to practice law? Then I called him and arrogantly asked if he thought I didn’t know how to practice law and whether his letter was directed at me. He explained that he thought sending his “code” to all defense counsel made it easier to deal with him.
So write one. If you don’t want to call it a “Personal Code of Ethics,” simply make it part of an initial conversation with opposing counsel, or a letter. Let your opposition know how you do things, how you deal with routine issues of extensions and setting dates. Don’t rely on the rules to determine your level of courtesy and professionalism. Make your own. Be different.
Lawyers who have been practicing for more than a couple years have (one hopes) developed a sense of how they want to practice law, and how they don’t. Lawyers are agents of change, people who sought an education for the purpose of understanding how law intersects with everyday life.
Understanding legal concepts and how to advocate them on behalf of a client is no replacement for understanding basic concepts of civility and professionalism. It’s time for lawyers to go beyond understanding the black letter concepts of ethical rules and write their own codes of basic good behavior, instead of having them written for us.