Too often in litigation, clients insist that their lawyers take no prisoners, and lawyers are made to fear risk of termination if they discourage their clients from demanding a too-aggressive approach. Sufficient concern over this phenomenon encouraged the authors of the rules of conduct regulating lawyers to seek to address the problem in black letter form.
No question, often the client, particularly if he or she is a sophisticated consumer of legal services, is the moving force in unnecessarily aggressive litigation or litigation tactics. When a judge sees that, she may take the unusual step of sanctioning the client directly – likely, along with the lawyer who is, by necessity, the “faceman,” so to speak. Such sanctions are usually monetary, requiring payment of the adverse party’s legal fees in having to address in court the offending party’s frivolous tactic. Sometimes, judges get so fed up that they actually strike a pleading or dismiss the case or defense altogether. It can happen!
But what about when it’s all on the lawyer? If the lawyer pushes his client to get aggressive, and in the process stirs up the client to believe things that aren’t really worthy of belief, do the rules as they currently exist adequately address the lawyer’s conduct? And if not, what can be done to prevent this kind of behavior?
The lawyer may be the “instigator” for a host of reasons. It may be the lure of the almighty buck. Maybe it’s the lawyer’s fundamental desire to prove to his client that he’s actually accomplishing something – even if that something is no more than making the adverse party feel pain. Perhaps it is his scorched-earth style, no matter the case or controversy. Or it’s his pathology as a human being – one of blind, tunnel-visioned obstinacy. Whatever the motivations, lawyers are often capable of employing their richer experience as litigators to “gin up” clients and persuade them to do something that nine out of 10 litigators would deem inappropriate and, frankly, incapable of accomplishing anything worthwhile.
And when it is the client (on either side of the case) who demands overzealousness – conduct which would border on the rules’ definition of “frivolous” – isn’t it a lawyer’s profound professional duty, even if not neatly found in a black letter rulebook, to convene a “Come to Jesus” meeting where he exercises his best efforts to persuade the client to “let it go,” given that “there’s no there there?” Indeed, if he fails to act as the independent professional he should be, and does not attempt to talk the client off the ledge, hasn’t he abandoned his duty as a professional? And, in some ways, doesn’t he actually become the “instigator,” given his time-honored role as “gatekeeper” to decide whether, and in what manner, a litigation should proceed?
The great legal philosopher, Edmond Cahn, said this:
[Above] all, the lawyer must understand that what he calls a ‘case,’ most laymen think of as ‘trouble,’ and understanding this he must instill hope (without boasting) and solace (without condescending). All in all the profession requires of us: to walk in the mire of mercantile [or personal] affairs without becoming sullied, to mix with the vulgar without becoming coarse, and though conducting an active business with wily old Mammon, to stand straight as independent contractors, never to bow as servants.
Although Professor Cahn was looking at the issue of the lawyer as independent professional from a somewhat different perspective than what is discussed here, isn’t it fundamentally the same point? Isn’t he saying that lawyers must enter the fray for which they are retained with gladiatorial zeal, but at the same time remain professionals with requisite objectivity and detachment? If we use our skills to expand the battlefield and scorch its earth, we do not help our clients to understand the fundamental fact that Promised Land of litigation is not inflicting pain on their adversary merely for the sake of doing so, it’s resolution.
The drafters of the rules appear to have recognized the near-impossibility of composing a rule that would ensure that lawyers use all reasonable means, in all situations, to dissuade clients from pushing litigations into unnecessary fight-to-the-finish battles royale, or that would stop lawyers from affirmatively encouraging such conduct. Any such rule would almost certainly subject lawyers to being second-guessed by commissions whose members might lack the practical experience to evaluate the very nuanced nature of an attorney-client relationship in the throes of a litigation. That said, without specific rules to prevent it, what is to stop the attorney from becoming an instigator?
Sometimes, the true professional requires only basic introspection to decide whether he is actually behaving well or badly; whether he is indeed properly and ethically representing his clients. Looking in the mirror in real time, however, doesn’t always work so well. Maybe we need to consider how we would have assessed the conduct in which we now so blithely engage from the vantage point of when we were still in law school or just starting out our legal careers. And maybe, if we are true to that assessment, we won’t need a martinet – or even a code of conduct – to remind us how to behave.
Joel Cohen practices white-collar criminal defense law in the New York office of Stroock & Stroock & Lavan. He also teaches Professional Responsibility at Fordham Law School. The author is a regular columnist for Law.com. The views expressed are his personal opinions.