Zealous Advocacy or Unprofessionalism : The Other Side ’ s Perspective
In the legal profession , perhaps the greatest insult is to be called “ unprofessional .” What does that insult really mean ? We know that this insult comes with negative connotations . It may even be regulated and disciplined by The Florida Bar . Yet do we have a definition of what it means to be “ unprofessional ?” Do we even have a definition of what it means to be “ professional ,” or is it simply something that might be different for each person based upon his or her perspective . When does negotiating fiercely for your client cross the “ professionalism ” line ?
The Rules Regulating The Florida Bar provide only some guidance as to what it means to be unprofessional . Non-compliance with these rules certainly could be considered unprofessional . However , these rules merely set a floor and even indicate that professionalism “ embraces
By Doug Jackson
far more than simply complying the minimal standards of professional conduct .” 1 This means that the rules don ’ t define “ professionalism ” because it is something far more than the rules . This lack of any formal definition of professionalism leaves us with limited clarity . If professionalism is not clearly defined , this leaves the definition 2 of unprofessionalism much more elusive . Is there some middle ground where an attorney can be acting between unprofessionalism and professionalism ? Are there circumstances when an attorney must act as neither professional nor unprofessional , threading the needle between the two ?
Then there is perhaps the biggest question , is aggressive or zealous representation unprofessional ? Can a heated debate be professional if it leads to best outcomes for clients ? Can another attorney making you question the morality of your position and your client be professional and effective advocacy ? When is zealous advocacy unprofessional or is it ever ?
The obvious answer is the same answer that which could be considered the trademark of the legal industry : “ It depends .” As lawyers , we tend to operate in the gray . When the answer is clear , our services are often less valuable . When the answer is unclear , that is where the legal industry thrives , especially in litigation . As the sayings goes , we live by the sword and die by the sword . Likewise , we lawyers operate in a gray area and it is that same gray area that is what will often dictate what it means to be professional versus unprofessional .
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The simple fact is that what is “ unprofessional ” conduct will continue to be debated — sometimes even heatedly and zealously . It is something that will continue to metamorphosize with the times and culture . 3 A good attorney must be aware of the temperament and pulse of both the tribunal and the community . A good attorney must be calculated and appeal to that pulse and temperament , while deviating only as is strictly necessary for the interest of the client . There will be times when we must act in a way that will not be in the interest of the opposing party or opposing counsel and may even offend . We should only go to those lengths when necessary , provided that they do not run