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February 09, 2016 Articles

Always Be an Advocate

By John Balestriere

Like most of us, I started my legal career when young, in my mid-20s. I'm in my 40s now, with several children, and I can understand (sort of) why my father, at the same age I am now, would call his colleagues in their 20s "kids." I'm a lawyer, and he had a very different job as a manager working for the New York City Department of Environmental Protection (and no matter how much I do know my work matters, I have to keep in mind that at points in his career he had end responsibility for ensuring that huge parts of the city—such as the entire borough of Brooklyn and its two and a half million residents—had clean water when they turned on the tap). But the reality is the same in both of our jobs, and in all professional work: it takes a while to learn how to do any work well, and you only learn well by doing.

A key struggle I see in young litigators in private practice without much experience doing—including the most gifted, best educated, and hardest working attorneys—is keeping in mind that they are hired as advocates for their clients. They are not the law students they once were, nor the judges they have already learned to respect and may long to be. They also are not what I was right out of law school: a prosecutor charged with determining what is justice and seeking that, not simply advocating.

I see this struggle with young lawyers acting as we are obligated to—as advocates—in the common new litigator problem of fighting hard for a client who the lawyer thinks should lose. My advice is very simple to all litigators: always maintain your integrity, but get over it quickly, learn how to advocate, or find a new job.

As private litigators like my colleagues and I and many readers of this newsletter, we unquestionably have an obligation to justice. By doing our work well we hopefully ensure that disputes are resolved in the right way, at least most of the time, and in doing so promote harmony and order in society.

We also have obligations to the courts. All litigators, including private lawyers, are so-called officers of the court, and must defer to court judgments and promote respect for the justice administered by our judges.

Moreover, we have obligations to our own integrity. No one undermines his or her integrity by accident. You can violate a court rule by accident (and that's not just a young lawyer problem; I see experienced lawyers all the time forget to keep apprised of frequent rules changes). You can break an ethics rule by accident (here's another young lawyer error—thinking all ethics rules are intuitive; they aren't, so be careful and bone up).

But you can't go against your conscience by accident. The most important quality of a truly great lawyer is integrity. And it's our responsibility to maintain our integrity as our highest professional responsibility.

If we agree on all that—we must maintain our integrity above all, but we must also be mindful of our obligation to the administration of justice—we then have to come back to my starting point. Private lawyers are advocates. We should act like advocates, otherwise we will not serve our clients. Indeed, in our American system in which all sides are represented by adversaries whose responsibility is to their clients, there will not be the aforementioned administration of justice unless we do act like advocates.

We are not judges. Judges decide the law, and who wins in a litigation, not us. Perhaps our argument is weak and we are concerned that some judges will go the other way. Perhaps we, as jurors, think we would vote against our client. Perhaps if we were arbitrators we would award victory to the other side. But none of these are our calls to make.

If we think our client has a weak case, we are certainly obligated to share that with the client and advise accordingly. I find that many of the young lawyers who have difficulty doing this also have difficulty saying no to clients. This is understandable. But we should not be yes-men and women. Resisting a client's inclinations or temptations is sometimes the best way to advocate for our clients.

However, if we share with the client our concerns, explain why we think the client's case has a weakness or that the argument the client wishes to make is likely a losing one, and the client still wants us to proceed, we proceed.

Obviously, I hope, we are not legal tools so there are some big caveats to this rule. If we think the client's claim or argument has no merit at all (as lawyers use that term), or that the client wants to misuse the system and our services, or that somehow what we are doing will actually violate our integrity (and not simply our sense of what we think is the right move), we say no.

But, again, with the perhaps annoying list of caveats from above (I am a lawyer, after all), young lawyers need to remember we are advocates and must act that way. We are not judges. We are not law students musing on how wonderful it would be if the law were different. In private practice we are not prosecutors (for whom winning means determining the most just result under the circumstances and seeking that, not the highest charge we can assert).

We are advocates, and we must win for our clients.

Keywords: litigation, solo practitioners, small firms, young lawyers, advocates, integrity

John Balestriere is a founding partner of Balestriere Fariello in New York, New York.

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