Loyalty, Advocating Zealously, Diligence, Competence
Loyalty is a key topic in legal ethics. It is a perennial source of controversy because of its occasionally subtle but possibly fatal impact on the outcome of legal representation.
We will delve deeper into the particulars of attorney loyalty when we discuss the basics of conflict of interest law. For now, think about the importance of loyalty to a client in general terms – how loyalty should never be compromised during the representation, as this would certainly impact the lawyer's performance. Look at the following example:
EXAMPLE: Larry Lawyer represents Ural Flush, Inc. in-house, as its general counsel. He used to work at Oink, Porker and Larry L.P. as a corporate lawyer, but found a better position at Ural and decided to move on. At Oink he represented Ural’s CEO personally on a number of matters, and became a great friend. They golf, play bridge, and attend Water Buffalo meetings together. The CEO got into some legal trouble at Ural when he cooked the company’s books to understate profits in the second quarter. The CEO comes to Larry Lawyer, not as a lawyer, but as a friend, for some advice as to what he should do and whom he should talk to in order to get out of this fix without losing his job.
The problem? Larry represents Ural, which now might be embroiled in an adversarial relationship with its CEO (the company might have to sue the CEO). Larry’s loyalty to Ural might be compromised if Ural has to commence legal proceedings against its CEO. Larry will probably be predisposed not to do harm to his friend’s career. The firm will be detrimentally affected by the conflict of interest and possible compromise of Larry Lawyer’s loyalty.
Lawyers also have a strict ethical responsibility to advocate zealously on behalf of their client. Zealous representation does not mean a lawyer should strive to “win” a case at all costs, if that means harming third parties and adversaries unnecessarily in the process. It means doing everything reasonable to help a client achieve the goals set forth at the outset of the representation.
EXAMPLE: Donny is embroiled in a contentious divorce. He orders his lawyer to exploit every possible weakness in his wife’s case in order to prevail – at all costs. One tactic Donny’s lawyer uses is a constant, unrelenting barrage of motion filings. The case drags on for years. In the end, Donny is miserable because he’s essentially ruined the family life of his daughter in order to gain the upper hand in the court’s distribution of family assets.
Has the attorney conducted himself ethically? It depends – if his motion filings were done solely for the purpose of harassment, then no, the attorney’s conduct was not ethical. Even if no ethical violation could be established, the attorney probably should have counseled Donny about the consequences of such zealous advocacy. Surely the health and happiness of Donny’s daughter is more important than any material acquisition.
Therefore a balance must be struck in strategizing -- between what is achievable within the bounds of the law, and what is reasonable in light of the impact on parties involved. For sure, domestic relations cases require peculiar sensibilities that probably would not be relevant in a corporate securities matter. In domestic relations cases, a lawyer has to be careful that her efforts to defeat the adversary do not negatively impact on the lives of children or other family members. Victories in domestic relations matters occasionally resemble sad necessities.
Whatever the issue at bar, overzealous representation presents dangers common to all aspects of the law -- a lawyer who does not strike a balance between what is achievable and what could be harmful to others will unnecessarily earn enemies along with his fee.
Practicing lawyers are busy people, and can get into trouble if they procrastinate. Cases rarely go smoothly, and there are always innumerable tasks to accomplish, including papers to fill out and file, documents to draft, calls to make, and meetings to schedule. Cases can be complicated affairs, and may take years from the time of the filing of the complaint to the final judgment. A setback in the form of a forgotten document filing could easily cause harm to a client’s case. Even after a judgment is obtained, there still may remain the legalities of collecting funds, which can be frustrating and problematic. This all goes to show that a lawyer must be diligent and organized. He must be thorough and well-prepared for any challenge.
EXAMPLE: A woman you’re acquainted with in the neighborhood comes up to you, a busy general practitioner, when she sees you waiting at the bus stop. You’re worried about making it to a hearing at the courthouse on time and your stress level is pretty high. The woman goes on and on about some abstruse legal problem. You listen with half an ear, and tell her you know just the attorney who can tackle her problem. You tell her you’ll provide some help. The bus comes up to the stop, and as you get on, in the rush, you forget to write down a little reminder about this woman’s case.
Might you have violated an ethical rule if you never get back to her and the statute of limitations on her case runs its course? Possibly, if a court determines that you have assumed some professional responsibility. A court might hold that your obligation to the woman is more than a simple courtesy. You could be held liable for malpractice – you assumed a responsibility and did not follow through with it.
A lawyer has a responsibility to keep lines of communication open with clients. Lawyers are notorious for not returning phone calls. For a litigator who spends most of his days going in and out of the courtroom, this is understandable. But a good litigator will get in touch with a client as soon as possible, and will let the client know that it may take a day to call back.
The Model Rules hold that a lawyer must keep a client reasonably informed about the status of a matter. The lawyer must promptly comply with reasonable requests for information. The lawyer also has an obligation to explain a matter to the extent reasonably necessary to permit the client to make informed decisions in the case.
(1) When the lawyer reasonably believes that immediate communication of information to the client would harm the client. In these cases, the lawyer may delay communicating the information.
For example, a psychiatrist tells you that you should not discuss a diagnosis with your client, because disclosure could be harmful. You should heed the psychiatrist’s warning and not disclose the diagnosis to your client.
(2) When the client would be likely to react imprudently to immediate communication
(3) When a court rule or order governing litigation requires that the lawyer not disclose the information to the client.
Three important bodies of law deal with lawyer competence – the 6th Amendment right to effective assistance of counsel, the tort laws on malpractice, and the rules of professional responsibility dealing with the ethical obligations in providing competent representation. Below we will discuss aspects of competent representation that are common across jurisdictions.
Knowledge and Skill Requirement
The Model Rules hold that competent representation requires the “legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.”
Lawyers get into trouble with clients and the ethics authorities if they take on a case they are incapable of handling, whether it be due to their training, experience, or if the volume of work is simply too much for one person to handle. For the most part, the skills that legal professionals learn in school and at work are of general applicability-- they assess a problem, research the law, and apply the facts of a case to the law they discovered.
General practice lawyers thus may be able to take on cases in many different areas of the law. However, there are cases and areas of the law that should not be handled by those untrained in particulars, just as you would not expect an oral surgeon to competently perform brain surgery. Moreover, if a sole practitioner takes on an unwieldy dispute with thousands of boxes of documents to review, he will drown in work and get little accomplished for the client.
A number of factors are used to determine if a lawyer is employing the required knowledge and skill in a particular matter. Courts look at the following points in assessing whether a lawyer possesses the requisite competence to assist a client in a matter.
(1) The relative complexity and specialized nature of a matter
Certain types of law are going to be off-limits to a non-specialist. A good example is patent law. In order to prosecute a patent before the U.S. Patent and Trademark Office (“PTO"), a lawyer must have passed the Patent Bar exam, in addition to a state bar exam. Lawyers involved in patent prosecution often come from scientific backgrounds, which helps in explaining and assessing technical issues.
EXAMPLE: Lenore lawyer takes a retainer to prosecute a patent for a new type of marine aquarium filter. She’s untrained in the sciences, but is positive she can handle the technicalities because she did a senior law school thesis on an intellectual property topic, she’s a great critical reader, and a sponge when it comes to new ideas. Is there an ethical problem with this scenario?
Lenore will not be able to prosecute the patent before the U.S. PTO without the proper certification. She is also at risk of harming the client due to her lack of training in the sciences. Lenore probably should have told the client to find a lawyer who has “engineering chops.” As we will see later in the course, if the client insisted on retaining Lenore, an agreement with the approval of the client could have been drafted to split the fee with a lawyer trained in the specifics of patent prosecution, provided Lenore remains active in the case.
(2) The lawyer’s experience and training
Sometimes the required proficiency is that of a general practitioner. General practitioners often handle “people law“-- they work on real estate closings, divorces, estate law, and might handle small business issues. There are no hard and fast rules as to which types of legal issues are beyond the experience of a general practitioner.
Some general practitioners have experience in, for example, complex corporate securities transactions, and are favorites of corporations looking to tie up loose ends without having to pay big-city legal bills. For the most part, however, a big corporation is going to look for a big law firm with the resources to take on monstrous litigation. A sole practitioner who has no experience in a case requiring the review of millions of documents and who has never managed a large team of legal professionals probably should refer such a case to an experienced firm.
(3) The preparation and study the lawyer needs to accomplish the task
The amount of preparation and study needed to accomplish a task should be reasonable. A lawyer has an obligation to conduct necessary legal research, and also must investigate all facts that are relevant to a case. See Model Rule 1.1. Some lawyers are more ambitious than others, as in any profession, but they should never let their ambitions get the best of them – take the following example:
EXAMPLE: A phenomenally successful, smart, and ambitious corporate lawyer takes on a DWI case for a friend of his son’s. He has never done this kind of work and is excited to get away from the dreary multinational corporate grind for a change. He researches like a fiend, works 24/7, contemplates all the minutiae of the case, and weighs an infinite number of strategies for prevailing in court. He wants his client to win this case so that the young man’s police record will remain unblemished.
Sure enough, the client prevails and he and his attorney are ecstatic. One problem – the lawyer charges by the hour, at $450 an hour to be exact. The client is left with thousands and thousands in legal bills for a DWI case that could have been competently handled for a fraction of that! The lawyer will learn another lesson -- he most probably will have to settle for a more reasonable fee.
Just as you wouldn't approach a garden-variety DWI case as you would a complex merger and acquisition, you wouldn't take on a multinational merger and acquisition case with the preparation you need to challenge a parking ticket, although both might require extensive research. Again, the amount of preparation and study to tackle the case must be reasonable.
(4) Whether it is feasible to refer the matter to, or consult with, another lawyer who is established in the related field.
Lawyers of all types must be willing to admit if the skills they possess are inadequate for the task at hand. It would be entirely unethical to collect a fee knowing you will not be able to handle a case with competence. Later in the course we will discuss the ethics of fee splitting, which would entitle a lawyer to assume the responsibilities he is prepared to tackle, while outsourcing help for other aspects of the case. A client must be properly informed from the outset whether or not his lawyer will need to refer the matter to another attorney who is established in the related field.