The canon of ethics states that an attorney should represent his or her client zealously. How does zealous representation resonate in the mediation process?
Zealousness in litigation is often viewed by attorneys as not showing their hand and protecting material damaging to their clients. In addition, it is not uncommon to express opinions (as opposed to facts) to both the opposing counsel and the tribunal in a blustery fashion (puffing). However, zealous representation includes observation of Rule 1.4 of the Model Rules, which requires the lawyer to explain to the client, regarding the matter under consideration, options so the client may make an informed decision. Clearly this includes facts and law harmful to the case and should never, as Jerome Frank warns, predict an outcome. (EC7-5 states that the client’s interests are furthered by a discussion of the likelihood of success. Likelihood of success means probability.)
