Most lawyers take pride in zealous advocacy on behalf of their clients.
However, zealousness should not be confused with what might be termed the “cobra approach” – churning the ground, striking out indiscriminately and seeking to inflict the maximum amount of damage on anyone in the way.
The effort to “win,” made more intense by the pressure of economics, can cause problems for any lawyer. In the practice of law we should never forget that we are dealing with human lives. The law cannot be a profession unless we ourselves maintain professionalism and deal with others as we want to be dealt with.
This fact is recognized in the Rules of Professional Conduct, where the commentary on Rule 1.3 (Diligence) states that, while lawyers should act with “commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf … [t]he lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.”
Indeed, for some time there has been called the “civility movement” in the legal profession, with those advocating it calling for an approach to legal practice expressed simply by Rodney King some years ago: “Can’t we all just get along?”
The lawyers who serve their clients best are problem solvers, not cobras.
This is far more than an issue of civility. The real concern is that a client’s interests – whether in a family law dispute or a billion-dollar litigation – is always best served by reasonable, rational legal counsel. Revenge and other negative human emotions should have no place in legal counsel.
Our current situation in Washington, D.C., is ample evidence that unreasoning aggressiveness in pursuing a fixed agenda, regardless of the human or financial consequences, is inevitably disastrous.
Of course, it is true that lawyers are no different from anyone else in how their basic human emotions work. But simple self-interest should dictate that being rude and obnoxious to legal adversaries is self-defeating.
Do we truly believe that such conduct will win us points or cause our client’s position to be moved forward? On the contrary, such behavior often merely entrenches the opposition further. Any lawyer can be a zealous advocate of a client’s interests and still do so with what the ABA calls “courtesy and respect.”
Civility has other ramifications. Consider client relations. Clients, like all people, like to buy from people they like. Doctors receive training about developing a “bedside manner” and treating patients with “compassionate care.” Yet law schools don’t teach lawyers how to interact with clients or learn what is most important to clients.
The lawyer is supposed to order, the client is supposed to obey. The result may be unpaid bills and disciplinary claims against a lawyer who is obnoxious or unreasonable.
Remember too that responding to a disciplinary complaint, whether made by a client or opposing counsel, is not a cost that a law firm or lawyer can pass on. Dealing with the motions and sanctions involved in a disciplinary complaint directly and negatively affects the lawyer’s bottom line.
That’s all the more reason to reject the cobra approach in wanting to come out on top even in little things, when the effort can be counterproductive or hurtful to all concerned.