PROFESSIONALISM CORNER
Are You a Lawyer or Just Another Hired Gun ?
D . CULVER SMITH III
A hallmark of the American legal system is a lawyer ’ s “ zeal ” in representing a client : a lawyer is expected to devote energy , intellect , skill , and personal commitment to the client ’ s objectives . We lawyers pride ourselves on “ zealous advocacy ” for our clients . But just what does that term mean ? Zeal means “ enthusiastic devotion to a cause , ideal , or goal and tireless diligence in its furtherance .” The ABA ’ s first code of ethics , the 1909 Canons , called for representing a client with “ warm zeal .” That term hardly envisioned defoliation of the litigation landscape .
The concept of zealous advocacy in popular lawyer parlance has been overblown . Alas , despite ethics rules , professionalism standards , and civility codes , lawyers continue to rationalize all kinds of unprofessional behavior in the name of “ zealous advocacy .” Examples abound :
• Procedural dishonesty : Purposeful delay , false unavailability , intellectually dishonest assertions , misleading silence . ( This can be seen in nonlitigation contexts as well .)
• Abusive examination : Questioning designed more to intimidate , embarrass , or humiliate a party or witness than to obtain relevant information .
• Discovery overreach and obfuscation : Boilerplate and untailored requests , objections , and responses . Dump-truck document production .
U . S . District Judge Iain Johnston of the Northern District of Illinois recently began an order by commenting that if Dante were a judge , he would have placed fee litigation as an inner circle of judicial Hell . Many judges would say the same about discovery disputes . Indeed , Judge Johnston ’ s case involved sanctions for discovery violations . Consider this : What if the discovering party were obligated in all instances to pay the adversary ’ s cost of providing discovery ? What if every irrelevant or overbroad request automatically resulted in a $ 1,000 sanction ? What if a party were required to pay an “ objection fee ” for every objection not based on privilege , regardless of its merit ? What if a lawyer who interposed the intellectually lazy “ to the extent that ” objection were automatically sanctioned ? No , none of this will happen , but the answers to these questions demonstrate the proliferation of unreasonable discovery requests and objections .
How do lawyers justify such behavior ? The lawyer is not necessarily a bad person , instead may consider such tactics part of being a “ good ” lawyer . After all , is not serving the client ’ s interest a noble endeavor ? The danger lies in intellectually or emotionally marrying the client or the cause — of losing sight of the separation between lawyer and client . The lawyer defers to the client , to the lawyer ’ s perceived role in the adversary system (“ zealous advocacy ”). The lawyer comes to trust these justifications instead of himself or herself — instead of his or her own moral judgment and personal values . The lawyer may not even realize that he or she is crossing the line until it ’ s too late to return . To quote H . R . Haldeman of Watergate fame , “ Once the toothpaste is out of the tube , it is awfully hard to get it back in .”
The adverse effects on the “ search for truth ” are bad enough . The irony is that lawyers who engage in such conduct seemingly overlook the negative consequences for themselves :
• Such conduct leads to loss of credibility , reputation , and respect ( ask any judge ), followed by diminishing success as an advocate , followed by loss of referrals and loss of income . ( Conversely , sustained professionalism , even in the face of difficult adversaries , often generates referrals — even from those adversaries .)
• Despite any self-perceived , selfcongratulatory role as a macho hero , a sustained pattern of such conduct leads to loss of self-respect that permeates the lawyer ’ s life , both professional and personal . ( This writer , in the course of more than fifty years of practice — much of it counseling and representing
PBCBA BAR BULLETIN 19 lawyers — has seen this time and again . The notion that one can live a dual life is delusional . You are who you are .)
Meanwhile , worst of all , the client suffers from excessive and unnecessary litigation expense and the inevitable diminishing returns caused by the lawyer ’ s loss of credibility .
Success is a journey , not a destination . Professionalism and personal integrity are roads to success . The client-centered partisanship encouraged by the adversary system contemplates objective partisanship . Clients are entitled to our commitment , our independent judgment , and our best efforts . They are not entitled to our souls .
D . Culver “ Skip ” Smith III focuses his practice on the ethical and professional responsibility of lawyers . He maintains an office in West Palm Beach and can be reached at 561-598-6800 or at < csmith @ culversmithlaw . com >.
Bar Buddies Mentoring Program
The “ Bar Buddies ” Program is designed to help attorneys who practice in the Palm Beaches connect and serve as a sounding board for each other . The Program seeks to connect local attorneys in a manner that takes into account links between attorneys that reach beyond their law practice . Attorneys are strongly encouraged to sign up for this informal program to speak with attorneys both within and beyond their existing networks and practice areas .
For more information , please visit the Bar Buddies Mentoring Program page at : www . palmbeachbar . org / barbuddies-mentoring-program /