MOST OF US, hopefully, would agree that the following language in a brief is unprofessional: "Attorney Jones, if he knew what he was doing, which he obviously does not, would never have made such a foolish statement. When Attorney Jones is not making an idiot of himself, he is lying to the court."

However, if that statement is written by counsel for a co-party in a brief that one also is signing, is it unprofessional to sign on? Similarly, if one is acting as "local" counsel and an out-of-state lawyer writes such language and says that he will take responsibility for making that statement, does that mean that the New Hampshire lawyer is absolved of responsibility? The same questions presumably apply if a client demands language of that kind. The hardest question may be what one does when a senior lawyer includes such language and instructs a junior lawyer in the firm to sign on.

Nearly all of us have been in a position where someone else—perhaps a co-counsel, a client or a senior lawyer in a law firm—has told us to do something or say something that a dispassionate observer might describe as unprofessional.

Ethical rules and court rules obviously impose some restrictions on the ability of an individual to rely entirely on the "she told me to do it" defense. However, in addition to and regardless of ethical and court rules, there presumably are limitations imposed by one’s own responsibility as a professional in relying on the "it was not my decision" excuse.

Of course, the pressure on an individual to take certain unprofessional action or make unprofessional statements may depend on the nature of the relationship between the individual professional and the person exerting the pressure. It probably is easier to resist pressure from a co-counsel during litigation than from a client. And it may be even harder and almost impossible to resist pressure from one’s boss. Nevertheless, it is difficult to be professional in one’s own behavior while reflexively following orders regardless of the effect.

There are a host of other circumstances where the "just following orders" issue arises. For instance, many of us have been in the position where an adversary has asked for a two-week extension of time to answer interrogatories or to answer a complaint at the onset of a case. When the client says, "let’s play hardball," we then have a professional responsibility—aside from any other responsibility that might be imposed by court rules—to explain and persuade a client (or a co-counsel) that that kind of "hardball" is counterproductive and is not—for lack of a better word—professional. It is easy to duck behind someone else but the easy way out is not necessarily the professional way out.

Recognizing that all individuals and all situations require their own solutions, there are several ways of addressing dilemmas of this kind. The approach that one follows may depend in large part on the nature of the relationship with the other party. In the case of a co-counsel relationship, it may be appropriate to discuss the nature of the relationship with co-counsel up front. In the case of a client, it obviously makes sense to explain to clients that unprofessional conduct can harm the client’s interest. In the case of a superior, it may be appropriate to speak with someone else in the organization if an issue arises. And if conduct that one deems to be unprofessional seems to be part of the job, then it may be time to polish up one’s resume. Ultimately, however, it sometimes may be necessary to just say "no" to someone.

It is simple to assert that one should "just say no" and that one should resist the pressures of maintaining a relationship with other counsel, with keeping a case and not being fired, or (most difficult) not being fired from a law firm or by a senior partner or another employer. Of course, in real life, compromises may have to be made. But we all should recognize at least that with every compromise in response to pressure from someone else, pressure based on the need to keep business or to make money and to bill hours, we may be reducing our sense of professionalism.

Just saying "someone else told me to do it" should not be enough. A professional exercises independent judgment and takes individual responsibility.

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