By Terry Resk
Published May 2017
Those words resonated with me like no other political speech ever had. Upon hearing Michelle Obama’s words, I immediately thought (1) that I should live more consistently by this sentiment, (2) that this philosophy exemplifies the Bar’s Professionalism Expectations, and (3) that this precept is “easier said than done.” So just why is it so difficult to take the high road? Pressure from clients and fellow attorneys? A mistaken but ingrained perception that, to be effective, we must be aggressive? Pride, coupled with a propensity to argue?
As difficult as it is, remember that you do not need your client’s approval to be professional, civil or even courteous. It is your obligation regardless of your client’s desire for total war. A “lawyer should not be governed by the client’s ulterior motives . . . , and should not “permit a client’s ill will . . . to become that of the lawyer.” Professionalism Expectations 7.1; 7.4 (approved by the Florida Board Bar of Governors January 30, 2015). In fact, lawyers have an affirmative duty to counsel clients against using tactics designed to hinder the process or to harass adversaries and should withdraw if the clients insist on such tactics. Professionalism Expectations 7.5.
Pressure even comes from other attorneys – often, it seems, from those who are not litigators and don’t have to worry about their reputation among the judiciary or their relationships with other litigators. I will never forget the tongue lashing I received as a young lawyer when I prepared one complaint containing several counts instead of many different complaints against the same defendants. The senior, real estate attorney, finally relented, but not before lamenting that, “they can always do it to me; why can’t I do it to them?”
We have all seen movies featuring overly aggressive attorneys engaging in “scorched earth” litigation. We can easily dismiss as unrealistic the scenes involving shoot outs in which, miraculously, the good guy emerges unscathed, and we even question the wisdom of engaging in such battles. Why can’t we similarly recognize the folly of bully litigation? You wouldn’t try the gunfight in real life; don’t try it in the courtroom either.
Attorneys have always been told that we have a duty to zealously represent our clients, but often mistakenly equate “zealousness” with aggressiveness rather than with fervor. Merriam Webster defines “zealousness” as “marked by fervent partisanship . . . characterized by zeal,” and defines zeal as “eagerness and ardent interest in pursuit of something.” https://www.merriamwebster.com/dictionary/zeal; zealous (last visited February 10, 2017). Absent from the definition of zealous are terms such as argumentative and contentious.
In fact, “[o]ver 20 years ago, the ABA’s Model Rules intentionally eliminated an express duty to zealously advocate and replaced it with a duty to represent one’s client with ‘reasonable diligence:”’
the drafters [of the Model Rules] advise: ‘a lawyer’s obligation zealously to protect and pursue a client’s legitimate interests. . . must include ‘a professional, courteous, and civil attitude . . . while lawyers must act with zeal in advocacy. . . [they are] not bound . . .to press for every advantage that might be realized for a client.’ . . . Attorneys who excuse aggressive tactics because they are zealously advocating for their clients stand on shaky ethical ground and flatly ignore requirements for professionalism and civility . . . .
Francine Griesing & Ashley Kenney, Taking the High Road: How to Deal Ethically with Bullies Who Don’t Play by the Rules: 2012 ABA Section of Litigation Corporate Counsel, CLE Seminar Hollywood, Florida (February 14-17, 2013) (citations omitted).
How many times have you engaged in less than professional banter because “he started it?” So what? Let it go! The next time I want to answer fire with fire, I will make a concerted effort to recall a seemingly unrelated practice which always made my son laugh. When the driver of another car honked or otherwise (unjustifiably) expressed displeasure with my driving skills, I didn’t reciprocate in kind, but instead waved enthusiastically and smiled as if he were a lifelong friend. This not only diffused rather than escalated the encounter, but confused and frustrated the other driver. Sometimes, I even got a wave back.
Therefore, if your pride is making it difficult for you to “go high,” do it anyway. You may improve your relationship with opposing counsel as he adopts your tone; if nothing else, you will frustrate him and keep your own blood pressure under control. More importantly, do it because it will benefit both you and your client in the long run – not to mention future clients as you build a reputation of reasonableness. Most importantly, “go high” because it is the right thing to do!