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After the Bar

Professional Development

When the Boundaries of Zealous Representation Collide with Human Empathy

James Harris Fierberg

When the Boundaries of Zealous Representation Collide with Human Empathy Sakimbayev

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As a new lawyer, you recently have had your head filled with a bevy of rules, regulations, elements, and defenses. You now are on a unique mission with a new role, a strange and awesome role, representing the “other,” that is, a client. What is certain is that your client has not had your life experience and simply is not you. Your client may not believe what you believe or think the way you do. Your client needs you to help solve a unique problem and wants the problem resolved.

You are also aware of the comment to Model Rule 1.3 of the ABA Model Rules of Professional Conduct, which has been drilled into your head. It states that “a lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf.” This dictate commonly is expressed as “representing your client zealously within the bounds of the law.” The word “zealously” is synonymous with words like fanatical, impassioned, rabid, burning, fanatic, fervid, and phrenic.

These adjectives all suggest a take-no-prisoners approach to dispute resolution. But that is wrong! These approaches are not within the bounds of the law but are the bounds of the law—and at that level, there is no further room to push the envelope. These adjectives suggest that the law must be a zero-sum game, that is, “my client can only win if your client loses.”

Not only is this approach short-sighted and wholly devoid of creative and critical thinking, but it also diminishes one of the most important human qualities we have—empathy. You may be a whiz at all things litigation, employing in all cases a punishing, unremitting commitment to crushing your opposition and hence their client, but in all but the most extraordinary circumstances, that level of indiscriminate zealotry fully misses the point of our true mission as lawyers.

You must always remember that the profession exists to help solve the problems of other humans. These are people who are often dealing with life-altering issues, who have been shouldering the burden of conflict for months or years.

Even as an opposing counsel, you can do enormous good when you realize that you must zealously represent your client within the bounds of the law. What does this mean? It means that becoming a lawyer does not require you to leave your humanity at the door. Empathy is a fundamental human trait. The ability to express empathy should be normative. It is not something you should have to learn, but it is something that you can choose to disregard, to the detriment of all involved and the profession as a whole.

Empathy involves an emotional understanding of what another person is experiencing. Having functional empathy skills allows you to put yourself into the shoes of another and feel the angst, pain, disappointment, fear, and other emotions that are at the root of the conflict. If you take the time to think about it, you can easily imagine yourself confronted by the same demons.

So, with all the pride swelling in your chest as a new lawyer and armed with an array of tools that can punish, castigate, weaken, and overwhelm your opposition, ask the question, “Do I need to do this, and how far should I go?” Remember, the ethics speak to zealousness within the bounds of the law, not at the bounds of the law. How you choose to view this mandate can change the space between the parties from a potential incivility cesspool (which stunts the entire process) to a laboratory for meaningful, creative, transformative problem-solving, the results of which will benefit not only your client and that of your adversary but also the other lawyers involved. And just as important, you will be advancing the never-ending quest to bring civility back to our profession. Client satisfaction must always be the baseline, but how that goal is achieved is up to you. Early in your career, you can learn that a zero-sum attitude is a fool’s mantra, or you can be ever on the search for empathetic, transformative, creative problem-solving.