It should go without saying: Be civil and courteous to other lawyers, including opposing counsel. Most young lawyers intuitively know this, and they enter the profession with the best intentions. Then something happens, usually some combination of witnessing unprofessional behavior by their senior colleagues and getting frustrated with uncooperative opposing counsel over a particular communication or series of interactions. The young lawyer may be tempted to emulate more experienced lawyers, who should know better but still act unprofessionally.
Many lawyers who act this way will say they are being “zealous advocates,” which they claim is not only permitted but also required for competency under the ethics rules. However, many are not aware that Canon 7 of the Model Code of Professional Responsibility, which stated that “[a] lawyer shall represent a client zealously within the bounds of the law,” has been replaced by ABA Model Rule 1.3 of the Model Rules of Professional Conduct, which states that “[a] lawyer shall act with reasonable diligence and promptness in representing a client.” This change was designed specifically to remove any suggestion that “reasonable diligence” includes offensive tactics or uncivil behavior. The comment makes clear that while a lawyer must act with commitment and dedication to the interests of the client, and “with zeal in advocacy on the client’s behalf,” a lawyer is not bound to press every advantage that might be realized for a client.
Some unprofessional lawyers truly believe that they are more effective when they act in an overly aggressive manner because, in the short term, they may win some small advantage (e.g., a concession in a negotiation or a decision in court, often obtained by simply wearing down the other side). In the long run, however, these tactics will get you nowhere at best and damage your reputation at worst. Gaining a reputation for incivility will cost you. There will be lawyers who won’t want to negotiate with you, settlements you won’t be able to obtain for your clients, and concessions that others will refuse to give you because you denied the same to them. Noted one senior associate:
You lose credibility by being nasty. Know the difference between being aggressive and being rude or unprofessional. Use the style that works for you; don’t be aggressive if that’s not your style. You can be very effective with a soft approach if you are firm in seeking your objectives and have a complete mastery of the facts.
Reprinted with permission from Building Your Ladder: An Associate’s Guide to Success Beyond Partnership by Marian Lee. Copyright 2013 by the American Bar Association. All rights reserved.