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Aggressive with a Capital “A”

Our firm was recently accused by an opposing counsel in Federal Court as having “aggressively prosecuted” our client’s claims “with a capital A.” And I don’t think that OC (opposing counsel) considered this a good thing when he made the remark! Nonetheless, the judge went with our motion and all was good, but it got me to thinking – when is aggressively representing your client a bad thing?

Apparently, I’m not the only guy in the blogosphere thinking of the same issue. In an article in the New York Law Journal, Paul C. Saunders, counsel with the firm of Cravath, Swaine and Moore, LLP, wondered “Whatever Happened To ‘Zealous Advocacy’?” And, Scott H. Greenfield, a criminal defense attorney and blogger, wrote on “Dead Lawyers Have No Enemies” on his Simple Justice Blog.

The question seems to be, what duty does an attorney have to zealously represent the interests of his or her client? At one time, the question would have been an easy one to answer — A lawyer has a duty to zealously represent the interests of his client. But, say the powers that be, times have changed and this is no longer the standard. Attorneys must be civil with each other and zealous representation is so “old school” and “Rambo.”

As discussed in his article, Saunders believes that it was a mistake to take the word “zeal” completely out of the New York Rules of Professional Conduct. He believes that zealous advocacy is an important professional requirement and cites Professor Anita Bernstein for the proposition that “the shortage of zeal has adversely affected the practice of law.”

Greenfield, writing about legal blawgers taking criticism for their views online, takes a similar tack. He argues that blawgers should “just take it [criticism] as proof that you're alive. Only dead lawyers have no enemies. If no one says mean things about you, then you're doing something very wrong.” It is evident from Greenfield’s other writings about his legal practice that he applies this meme to his criminal defense work. Or, as a judge once remarked to me, “The only judges who don’t get overturned are the ones who don’t do anything.”

But how does this apply to your situation, you ask? Why should I, as a business owner, care what the rules of attorney conduct say – or don’t say – about zealous advocacy? It matters to you because it is your business and fortune that are in our hands when we represent you.

Zealous advocacy or representation is a result of “the duty of the lawyer, subject to his role as an ‘officer of the court,’ …to further the interests of his clients by all lawful means, even when those interests are in conflict with the interests of the United States or of a State.” In re Griffiths, 413 U.S. 717, 724 n. 14 (U.S. 1973). The term goes back at least to 1820 and the defense of Queen Caroline of England by Henry, Lord Brougham, wherein he famously stated:

“[A]n advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and amongst them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may ring upon others. Separating the duty of the patriot from that of an advocate, he must go on reckless of the consequences, though it should be his unhappy fate to involve his country in confusion.” 

(Brougham, Life and Times of Lord Brougham 405–07)

This is the traditional standard for attorneys in representing their clients, yet even in Texas, the term “zealous advocacy” has been taken out of the text in the Disciplinary Rules of Professional Conduct, and now resides only in the Preamble, which is not mandatory, but just an admonishment. The Preamble continues to state, as a general idea, that “as advocate, a lawyer zealously asserts the client's position under the rules of the adversary system.” (Tex. R. Prof Conduct Preamble, par. 2). Additionally, we are told that “in all professional functions, a lawyer should zealously pursue client's interests within the bounds of the law.” (Tex. R. Prof Conduct Preamble, par. 3). But, because this admonition is in the Preamble and no longer in the rules, it has no bite; failure to zealously represent one’s client is not grounds for discipline.

But some of us in the legal field hold to the old standard and continue to represent our clients zealously. Even if it means we make enemies and even if it puts us in the minority, we do it because it is the right thing to do. Besides, as Scott Greenfield so aptly puts it, “only dead [or uncaring] lawyers have no enemies.”
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