Vail Daily column: Zealous advocacy
In the public esteem, we lawyers are often held in equal contempt as used car salesmen and — God forbid — politicians. Skinks, snakes and household vermin are, in some eyes, more respectable than a guy in a three-piece suit and a briefcase. But it’s not our fault. Really. We are obliged by the rules of ethics, if not to be exactly SOBs, to be at least close to the edge on our clients’ behalves. In law-talk, it’s called zealous advocacy.
Advocacy, defined by Webster’s, is the act of pleading or supporting. We lawyers plead on our client’s behalf and support them in their legal matters.
The bombshell word is zealous, deriving from the word “zealot,” which Webster’s defines as one who is full of zeal, especially to an extreme or excessive degree. Zeal, in turn, is derived from the German zeein which means to boil, in this case with enthusiasm. So, our impost as attorneys is to “boil” with enthusiasm in support of our clients. This hardly leaves room for temperance or sometimes even civility.
An attorney’s loyalty
In the annals of law, an oft-quoted statement of an attorney’s duty of loyalty to his client is stated thus:
“An 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, himself, is his first and only duty; and in performing this duty, he must not regard the alarm, the torments, the destruction he may bring upon others.”
Whew! No wonder a lawyer who takes his station seriously can present such a formidable opponent. But would you really want it otherwise?
Suppose you have a legal problem — say, a serious one. Would you really want to entrust your problem to someone who wasn’t fully on your side?
Be assured, the other guy will have his lawyer, blood dripping from his flanged fangs, looking out for his best interests. It’s a consequence of our adversarial system of law: You look out for you and let the other guy look out for himself. Analogies can be made, if you like, to a game of football where concern for the welfare of your opponent is last-most in your mind, or to the nature of our capitalistic society itself. Each guy looking out for his own selfish interests will somehow benefit the common weal.
Limits on said loyalty
But there are some brakes on lawyers’ obstreperousness. Take for example Rule 4.4 of the Colorado Rules of Professional Conduct which provides that:
“In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.”
In other words, we can’t run roughshod over the opponent for no good purpose. Neither can we, in hoisting up the flag of zealous advocacy, violate the law nor advance a claim we know to be lacking legal merit.
Rule 1.2 (d) provides that “A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent…” Further, Rule 1.2 (e) holds that “When a lawyer knows that a client expects assistance not permitted by the rules of professional conduct or other law, the lawyer shall consult with the client regarding the relevant limitations on the lawyer’s conduct.”
Rule 1.16 (a) of the Colorado Rules of Professional Conduct provides that “ … a lawyer shall not represent a client …if (1) the representation will result in a violation of the rules of professional conduct or other law.” Rule 1.16(b) provides that an attorney must withdraw his or her representation of a client where the client “(A) insists upon presenting a claim or defense that is not warranted under existing law and cannot be supported…. (B) personally seeks to pursue an illegal course of conduct (C) insists that the lawyer pursue a course of conduct that is illegal.”
Just doing their job
Generally, lawyers are “tough” only on or to the other side of a litigation or transaction. To his or her own clients, a good lawyer is an ally, a respected friend, an essential business partner and a confidant with whom all options may be openly explored. A lawyer who seems a-boil with his client’s interest is simply doing his job. So long as he or she does so fairly and honestly, he is simply carrying out his job.
If you don’t like lawyers, fine. Some of them are schmoes. And a handful go too far. But, really, if you don’t like lawyers for their zealotry, blame the system, not the guy who’s simply giving his clients the fullest of the representation they deserve.
Still, a lawyer, especially an experienced one, learns how to balance the duty of zealous advocacy on behalf of his or her client with courtliness and courtesy to others. It is in the interest of betterment of the profession that he or she do so and in the hope that we can all learn to better get along that he or she must.
Courtesy and respect — even among lawyers — goes a long, long way. And anyway, we, believe it or not, are human, too.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. He may be heard on Wednesdays at 7 p.m. on KZYR radio (97.7 FM) and seen on ECOTV 18 as host of “Community Focus.” Robbins may be reached at 970-926-4461 or at either of his email addresses, email@example.com or firstname.lastname@example.org.