New Hampshire Bar Association
About the Bar
For Members
For the Public
Legal Links
Publications
Newsroom
Online Store
Vendor Directory
NH Bar Foundation
Judicial Branch
NHMCLE

C-Beyond with Centrix Bank - we help businesses see beyond to their true potential.

Order with big business buying power.
New Hampshire Bar Association
Lawyer Referral Service Law Related Education NHBA CLE NHBA Insurance Agency

Member Login
username and password

Bar Journal - June 1, 1999

Zealous Advocacy Versus Independent Judgment: An Elusive Balance

By:
 

A wealthy client comes into your office. She reveals that almost three years ago, she ran down a young, uneducated man while driving her vehicle. She had no insurance and no defense to the claim. She has had occasional discussions with the victim, who is unrepresented, to see if the matter could be settled. He has suffered extensive injuries, but has not insisted on any major compensation because your client has given him small amounts of subsistence money from time to time. She has also asked her personal physician to examine the man. Although the young man is aware that his injuries are serious, he is unaware that one, also caused by the accident, is life-threatening according to her physician. She asks you to represent her, instructing you to obtain a release in exchange for the help she's provided the victim to date, not to reveal the nature of his condition, and to plead the statute of limitations if settlement is not achieved and the statute runs. What do you do?

Ask a lawyer or judge at the New Hampshire Bar Association's 1998 Professionalism Conclave to identify one of the characteristics that typifies an unprofessional lawyer and a stereotype commonly described was the zealous advocate or "hired gun."1 A vast majority of the attendees resented lawyers who unquestionably accepted a client's objective and zealously pursued it on grounds that the end justified any means - regardless of the harm to others. Instead, attendees exhorted the attributes of the independent lawyer - one who exercises independent judgment on behalf of his or her client. Yet, representation of clients requires both zealous advocacy and independent judgment. The question becomes how to achieve the balance.

If a major characteristic of professionalism is independent lawyering, is it "unprofessional" for the lawyer to undertake representation if the client's ends are morally objectionable or reprehensible? If the client's ends are acceptable, but the means that the client urges are objectionable or reprehensible, is representation "unprofessional?" In fact, if both the end and the means are objectionable or reprehensible, is representation "unprofessional?" On the other hand, is a lawyer who exercises independent judgment over a client's emphatic protests "professional?" What if that independent lawyer also possesses a misguided sense of judgment? If the answer to all five of these inquiries is "it depends," then upon what does "it" depend?

THE PROFESSIONAL CONDUCT RULES AS GUIDEPOSTS FOR PROFESSIONAL INDEPENDENCE

Blind adherence to the New Hampshire Rules of Professional Conduct (the "Rules") lends scant assistance in answering these inquiries. Unfortunately, the rules and some of the accompanying comments send mixed messages.2 For example, in the name of zealous advocacy, the Rules state that "(a) lawyer shall abide by a client's decisions concerning the objectives of representation... " subject to (1) the right to limit the objectives, (2) the duty to avoid fraudulent or criminal conduct, and (3) the duty to advise a client of legal and ethical limits on the lawyer's conduct.3 A lawyer may also zealously pursue a client's morally reprehensible objectives because the Rules provide that such representation "does not constitute an endorsement of the client's political, economic, social or moral views or activities."4 One comment accompanying the Rules states that "(t)he client has ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by law and the lawyer's professional obligations."5 A comment to yet another Rule states that:

"A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and may take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor. A lawyer should act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf."6

On the other hand, in the name of independent judgment, the preceding comment goes on to state that "a lawyer is not bound to press for every advantage that might be realized for a client. A lawyer has professional discretion in determining the means by which a matter should be pursued."7 Indeed, "(a) lawyer is not required to pursue objectives or employ means simply because a client may wish that lawyer to do so."8

Amid these mixed messages, the Rules superficially attempt to offer some guidance. Specifically, they attempt to assign authority for the objectives of representation to the client, while assigning the means to achieve those objectives to the lawyer. Even then, there is an admission that:

"A clear distinction between objectives and means sometimes cannot be drawn, and in many cases the client-lawyer relationship partakes of a joint undertaking. In questions of means, the lawyer should assume responsibility for technical and legal tactical issues, but should defer to the client regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected."9

With this framework, if opposing counsel seeks a continuance to a critical motion hearing due to a long-standing vacation, is the client the ultimate decision-maker concerning consent because further delay constitutes additional expense or enables opposing counsel to better prepare for the hearing? Or is the request for continuance a "technical and legal tactical issue," as described in the comment above, over which the lawyer has responsibility? Certainly, the rules of professional conduct could be read to leave such a decision to the client. Yet, there are few, if any of the Conclave participants who would agree that an objection to this continuance seems "professional."

The application of the Rules to the opening hypothetical produces satisfying results for the zealous advocate, but troubling results for the "independent lawyer." There are at least three aspects about the client's instructions that might give lawyers pause. First, the client wants to settle the case for far less than its value and seemingly, on past consideration. Second, she wants to plead the statute of limitations as a defense to a claim for which she has no other defense. Third, she does not want to reveal the victim's life-threatening condition.

Settling the case for less than its value is not prohibited by the Rules. In fact, most lawyers agree that one of the fundamental tenets of lawyers who defend clients in civil matters is to resolve cases for less than their value. What about a statement in a release that the consideration for the settlement is money which has already exchanged hands? Assuming past consideration is not adequate consideration to bind a party to a release in New Hampshire, does this create an ethical problem? The Rules prohibit assisting a client in conduct that is criminal or fraudulent,10 or committing conduct that is itself criminal or fraudulent.11 The insertion of such a statement is certainly not criminal, but to the extent that the clause is deceptive or misleading because the unrepresented person knows no better, is the conduct fraudulent? "Fraud" or "fraudulent" is defined as " ... conduct having a purpose to deceive and not merely negligent misrepresentation or a failure to apprise another of relevant information."12 Yet, in New Hampshire it is acceptable if not common practice to overreach when drafting contracts in hopes of discouraging certain conduct. This practice suggests the conduct is not unethical.

The fact that the victim is unrepresented provides no greater solace to those who might deem the release immoral or reprehensible. The applicable rules merely require a lawyer to state that he or she is not disinterested when dealing with an unrepresented person, and to correct any misunderstanding about the lawyer's role if one exists.13 They also state that a lawyer:

" ... hall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or (to) use methods of obtaining evidence that violate the legal rights of such person."14

Nearly every New Hampshire lawyer will agree that the release language is not substantially intended to embarrass, delay or burden the victim. They will also note that a letter from you cautioning the uneducated victim that he should seek independent legal counsel and that you do not represent his interests will easily comply with the Rules described above even if the victim cannot afford an attorney and may not understand the impact of the release on his rights.

The Rules also permit the lawyer to plead the statute of limitations in the opening hypothetical. Again, such conduct is neither fraudulent or criminal. Moreover, as we have seen, the Rules require deference to the client concerning the objectives of representation.15 One might argue that a statute of limitations should not be used where there is no defense to liability, since the underlying purpose of such statutes is to ensure that claims are not prosecuted after witnesses have disappeared and evidence has grown stale. For those who have tried such an argument in New Hampshire to defeat a statute of limitations defense, it is doomed to fail. Thus, while the objective may be morally reprehensible - a seriously-injured victim with no means of recovery - the Rules countenance such conduct.

The Rules also easily dispose of the third dilemma - non-disclosure of the victim's life-threatening injuries. A lawyer is prohibited from revealing information relating to representation of a client unless the client consents after consultation.16 Certainly, the information about the life-threatening injury constitutes "information relating to representation" under Rule 1.6. True, a lawyer:

" ... may reveal such information to the extent a lawyer believes necessary to prevent the client from committing a criminal act that the lawyer believes is likely to result in death or bodily harm or substantial injury to the financial interest or property of another."17

However, the lawyer's (or the client's) failure to disclose the life-threatening injury does not constitute a criminal act. Thus, disclosure is not only ill-advised; it is prohibited. In fact, the only relief for the hesitant lawyer in this hypothetical is withdrawal if (a) it can be accomplished without material adverse effect on the client, and (b) the lawyer believes that the " ... client insists upon pursuing an objective that the lawyer considers repugnant or imprudent."18

Therefore, for those who maintain that zealous advocates who pursue morally reprehensible means or ends are unprofessional, one need look no further than our Rules of Professional Conduct to find support for such conduct. The Rules admittedly establish the minimum ethical conduct expected of members of our profession; however, the ABA and New Hampshire comments, which at times, espouse or encourage conduct that is better than that which a rule requires, provide no set of values or principles which consistently urge other outcomes.19

OTHER MODELS FOR PROFESSIONAL INDEPENDENCE

Some lawyers might argue that the call for professionalism in New Hampshire is no more than a call for civility. In his book Why Lawyers Behave As They Do, Professor Paul G. Haskell of the University of North Carolina decries the lack of civility that our system of adversarial representation has produced.

In the courtroom lawyers engage in insulting exchanges and charge each other with improper conduct. Lawyers often time their filing of documents to allow as little time as possible for the opposing lawyer to prepare his response. Lawyers sometimes refuse to agree to requests for extensions of deadlines for tactical advantage. Depositions may be scheduled so as to inconvenience the opposing attorney or witness. Negotiations are frequently threatening and acrimonious. This behavior does harm to the reputation of lawyers who use such tactics, but for many that is not a deterrent.20

However, acting civilly or "nicely" to other lawyers or unrepresented parties hardly achieves a satisfying result in our hypothetical. Civility, without more, would simply require the lawyer seeking the tactical and legal advantages described in the opening hypothetical, to act in a courteous and non-hostile manner. Ironically, for the young, uneducated victim, such polite conduct and deference may do more to lull him into a sense of false security than an uncivil lawyer.

For Professor Anthony T. Kronman, the author of The Lost Lawyer: Failing Ideals of the Legal Profession, the call to professionalism requires rebirth of the lawyer as a "statesman." He states that:

" ... unless the practice of law is tempered by a concern for the public good, it can never be anything but an amoral tool for the satisfaction of private needs. And ... the level of public spiritedness within the profession is dismally low and needs to be increased. Lawyers should spend more time on law reform and the pro bono representation of worthy causes and clients."21

He also states that in addition to public spiritedness, the lawyer statesman must appreciate the legal skills that he or she employs for their own sake, and not because they produce "an independently desirable outcome, even a morally praiseworthy kind".22 Moreover, this appreciation must become part of the lawyer's character.23

Yet, law reform, pro bono representation and appreciation about the meaningfulness of the skills that make lawyering a unique and rewarding profession, provides little solace to the independent lawyer in our hypothetical. I believe that under the Kronman model, the client would simply find no lawyer to undertake work on her behalf, due to the means she seeks to employ and the objectives that she desires to achieve. To many New Hampshire lawyers, this result is also unacceptable.

Professor Haskell takes the concept of an independent lawyer one step further, stating:

"How much better it would be for society, the profession and lawyers personally if the duty owed to the client was limited to what the client was entitled to under the law applicable to the representation. .... (T)here would no reason, for the most part, to use injurious tactics. It is not suggested that the adversarial method be abandoned, but rather that it be limited to honest differences concerning facts and law."24

In this model, a client's objectives and the lawyer's duties are tempered by that which the law will allow. In our hypothetical, the statute of limitations might not be asserted because there is no defense to liability. A release containing invalid or deceptive terms could not be proffered to the young, unsuspecting victim. In addition, because a client is only entitled to that "under the law applicable to the representation," the client should not benefit from or avoid liability due to the victim's lack of knowledge that he suffers from a life-threatening injury which she caused. Many would argue this outcome, too, is improper. For many lawyers whose instincts and training are founded on the fundamental tenets of our adversary system of justice, the Haskell model produces results as equally offensive as the results abhorred by those who denounce the zealous advocacy model.

The results become even more abhorrent if (1) the "law applicable to the representation" is wrong (such as laws supporting invidious racial discrimination), or (2) the lawyer fails to understand or is incorrect about the "law applicable to the representation." Perhaps most dangerous is the independent lawyer who allows his or her own sense of right and wrong - however perverted that might be - to affect his or her obligations to the client if there are conflicting laws "applicable to the representation."

How can a balance be achieved between the zealous representation of a client's interests and the professional independence of a lawyer who seeks the "right" result? While no fully integrated model is proposed, consider the following principles:

  1. Great deference should be afforded the client for decisions establishing the objectives of representation and the means employed to achieve those objectives, when the objectives and means have little or no impact on the rights of other parties, whether they be opponents, opposing counsel, the court, witnesses, interveners, beneficiaries or others. In general, decisions about deadlines by which work is to be produced for a client, or decisions about provisions which should be included in pleadings or documents which are intended to benefit the client such as wills or trusts, and the like should be the client's with minimal independence exerted by the lawyer.
  2. When the rights of others outside the attorney-client relationship are impacted, the lawyer's duty to counsel the client about the wisdom and advisability of a client's decision grows with the degree of adverse impact. This is especially important if the client urges overreaching or the pursuit of technical advantages that create outcomes which the law might not otherwise provide. In situations where a decision has substantial adverse impact upon a party other than the client, such as the decision to conceal the victim's life-threatening injury, the lawyer should bring all of his or her skill to bear in counseling the client that disclosure is warranted. In such situations, advice rendered for the client's consideration should not be limited to that which the law permits or provides. In fact, in situations where a decision would cause great harm to a party other than the client, purely technical legal advice should be unethical. Other considerations, such as moral, economic, social and political factors must be brought to the client's attention, accompanied by recommendations about the appropriate decision from the lawyer's perspective.25 In a properly nurtured attorney-client relationship, a client is more than likely to follow an attorney's recommendations under such circumstances and will not view the many considerations and recommendations advanced by the lawyer as a sign that the lawyer fails as the zealous advocate the client otherwise desires.
  3. Efforts should be made to determine whether the client's means and/or goals can be reconciled with the lawyer's advice and recommendations, to the extent that disputes emerge. There may be ways of achieving the same or similar positions without employing means and/or ends that cause great harm to a third party.
  4. If, despite best efforts, the recommendations of the lawyer fall on deaf ears, but the lawyer determines that the client's decision(s) are not illegal, fraudulent or personally repugnant or imprudent, then the lawyer should announce to the client that which he or she is willing to do to achieve the client's goals. If this is inadequate or prejudicial to the client, or if the decision(s) are illegal, fraudulent or personally repugnant or imprudent, then the lawyer must withdraw.
  5. If and when the client and attorney agree on a decision and the course of conduct that both will follow, the attorney should embark on such conduct in a courteous and civil fashion. At no time should hardball tactics or abusive behavior be utilized to achieve the client's ends. At least one New Hampshire court has explicitly adopted this view.26

Admittedly, the "model" is most troubling when a decision favoring one result may cause the client great harm, while a decision favoring another result may cause the third party great harm. For example, a decision not to plead the statute of limitations in the opening hypothetical leads to a great burden upon the client. However, under certain circumstances, such as a case where a severely injured individual is left without any remedy, a decision to waive the statute of limitations or an agreement to stay the statute, on a temporary basis to see if settlement can be achieved, may be appropriate.

Thus, in the opening hypothetical, a lawyer dealing with the statute of limitations issue might advise the client that the subsistence funding and medical analysis she has provided may give the victim a strong argument that the statute of limitations will not expire three years from the accident date. The client should also be counseled to analyze the time and cost of raising the defense that may fail due to the equities in the case. While recognizing the financial impact on the client if the statute is not employed, the lawyer should point out that the lack of any valid defense to the claim should also play a role in the client's decision. The lawyer might also note the societal condemnation that the client might face as the public learns of the "technicality" that allowed the client to escape responsibility. The lawyer might urge the client to enter into an agreement to stay any applicable statute of limitations pending a fixed period or a period following the failure to reach a settlement.

In dealing with a release containing language that is overreaching, a lawyer might explain to the client the likelihood that the release could be set aside, including the cost and impact of such a decision and the moral consequences of seeking such an advantage. The lawyer might urge that the release is not something which the lawyer is willing to pursue if the client is not prepared to offer more. The lawyer might also observe that the release could be worthless if a legal challenge were mounted.

In dealing with the client's desire to conceal the victim's life-threatening injury, detailed advice focusing on the impact of the concealment on the client should be brought to bear. The client should be urged to analyze carefully how the court will view the failure to disclose the seriousness of the victim's injuries after she employed her own doctor to examine the victim in an environment in which the victim appeared to trust her. Moral considerations such as any family the victim might have, the physical agony the victim might suffer as his life ebbs away due to the injury, the client's reaction if the roles were reversed, and the public reaction if the public learns of the injury and its cause should also be brought to the client's attention with a recommendation that disclosure is advisable.

Perhaps the many considerations supporting a recommendation of disclosure should be put in writing for the client to consider before reaching a final decision. The referral of the client to other attorneys or laypersons who might espouse the same philosophical approach may be appropriate. If, in the end, the client elects non-disclosure, then the lawyer must determine whether he or she will become the instrumentality that accomplishes the client's objectives. If the lawyer elects to proceed with representation, conduct must be civil and courteous.

In this model, the professional independence of the lawyer emerges in the way of advice and counsel that the lawyer provides to a client, together with the limitations on that which the lawyer is willing to pursue after the client has thoughtfully considered the lawyer's advice. In a situation where the client is pursuing reprehensible means or ends, the client must determine whether to continue to pursue the means and objectives originally prescribed, to modify those means or objectives, or to seek other counsel, who hopefully will provide similar advice and recommendations as the original lawyer. Professionalism is also enhanced through the universal understanding and agreement among members of the bar that abusive conduct and hardball tactics play no role in the pursuit of a client's cause.

CONCLUSION

Zealous (but civil) representation of a client's interests must be combined with and tempered by the professional independence of a lawyer to achieve fair and appropriate results through appropriate means that are neither overreaching nor injurious to others. Professionalism demands that a lawyer pay deference to the client's objectives and means by which the objectives are achieved; but it also demands that the propriety of the means and the objectives must be examined. Where the client's objectives or the means to achieve such objectives are injurious to others and involve overreaching or pursuit of technical advantages to achieve outcomes that the law might not otherwise provide, the lawyer's role as an advisor must supersede the lawyer's role as an advocate. The scope of the advice, the factors brought to bear and the strength of the recommendations increases as the harm or injury to others outside the attorney-client relationship increases. Competing harms may need to be measured by lawyers against the result the law would provide if technical defenses, overreaching or other tactics are not employed. Choices over competing harms should also be influenced by non-legal factors, such as moral, financial, economic, social and political factors that are relevant to the matter. Ultimately, once a client has reached a decision following proper counseling by the lawyer, the lawyer must subjectively determine whether the means or ends are appropriate for the lawyer to undertake. The process is not easy, and the time and effort devoted to listening, counseling and recommending courses of action is substantial. But it is this effort and the constant self-examination of the lawyer's role in the representation of a client's interests that is the hallmark of professionalism.

ENDNOTES

1.

See the Report on the 1998 New Hampshire Bar Association Professionalism Conclave by Benthien Associates, esp. Section 2.

2.

The author is aware that the New Hampshire Supreme Court did not adopt the American Bar Association comments to the Rules of Professional Conduct. Nonetheless, both the Supreme Court and the New Hampshire Bar Associations have cited to the comments on countless occasions in providing opinions on ethics.

3.

See New Hampshire Rule of Professional Conduct (NHRPC) 1.2 (a), (c), (d) and (e). All rule references in this article are to the New Hampshire Rules of Professional Conduct, as amended through October 15, 1997.

4.

See NHRPC 1.2(b).

5.

ABA Comments to NHRPC 1.2.

6.

See ABA Comments to NHRPC 1.3.

7.

Id.

8.

See ABA Comments to NHRPC 1.2.

9.

Id.

10.

See NHRPC 1.2(d).

11.

See NHRPC 8.4(c).

12.

The definition is located in the Terminology Section of the Rules of Professional Conduct.

13.

See NHRPC 4.3.

14.

See NHRPC 4.4.

15.

See NHRPC 1.2(a).

16.

NHRPC 1.6(a).

17.

NHRPC 1.6(b)(1). Note the slight difference from the ABA Model Rule on Confidentiality, which does not include economic injury as a grounds for permissible disclosure.

18.

NHRPC 1.16(b)(3).

19.

Note that many comments are replete with suggestions of conduct that a lawyer "may" or "should" follow, that goes beyond that which the Rules provide. For example, note some of the additional considerations and steps a lawyer should take before revealing confidences under the exceptions in NHRPC 1.6.

20.

Paul G. Haskell, Why Lawyers Behave As They Do, p. 104 (Westview Press 1998).

21.

Anthony T. Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession, p. 365 (Harvard University Press 1993).

22.

Id. at pp. 366-67.

23.

Id.

25.

Aspects of this position are set forth in NHRPC 2.1 - a largely ignored rule of professional conduct.

26.

Nault's Automobile Sales, Inc. v. American Honda, 148 F.R.D. 25 (DCNH 1993).

The Author

Attorney Richard Y. Uchida is a partner with the firm of Hebert & Uchida, Concord, NH.

 

 

Click for directions to Bar events.

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
email: NHBAinfo@nhbar.org
© NH Bar Association Disclaimer