How Far Do We Go To Zealously Represent Our Clients?
Recently, in a highly contentious case, I went down to the courthouse to argue about four words. That’s right…we could not agree about four words—including but not limited to. So, we spent two hours of the court’s time—and our clients’ money—arguing about four words. This incident left me scratching my head asking, are we really doing the best for our clients when we have to seek court intervention about four words? The short answer is no.
As lawyers, we are charged to zealously advocate for our clients. It does not have to be scorched earth, or win at all costs, litigation at every turn. We should also be looking out for their best interests, which includes their legal spend on frivolous arguments. When we can reach common ground with opposing counsel, we should work to do so.
The State Bar of Texas President recently announced that April 20th has been proclaimed as the Texas Day of Civility by the Supreme Court of Texas. The courts and bar have said, among other things, that “[t]he conduct of a lawyer should be characterized at all times by honesty, candor, and fairness. In fulfilling his or her primary duty to a client, a lawyer must be ever mindful of the profession’s broader duty to the legal system.”
Thus, not only do we need to advocate on our client’s behalf, but we also have a duty to the legal system to bring the matters to the court’s attention that truly need the court’s intervention. We need to manage our clients’ expectations and have honest conversations with opposing counsel regarding these issues. When we are having full and open conversations with clients and opposing counsel, we can get to the heart of the dispute and not waste the courts’ already crowded dockets.
Refresher on the Texas Lawyers Creed
I must admit, I am a highly competitive Type A rule follower. So, when opposing counsel plays fast and loose with the rules my emotions can get the best of me. In this same litigation, the Court reminded the parties of the Texas Lawyers Creed:
A lawyer owes to opposing counsel, in the conduct of legal transactions and the pursuit of litigation, courtesy, candor, cooperation, and scrupulous observance of all agreements and mutual understandings. Ill feelings between clients shall not influence a lawyer’s conduct, attitude, or demeanor toward opposing counsel. A lawyer shall not engage in unprofessional conduct in retaliation against other unprofessional conduct. […] I will not, without good cause, attribute bad motives or unethical conduct to opposing counsel nor bring the profession into disrepute by unfounded accusations of impropriety.
Albeit a demanding and challenging role not to get into the true emotional trenches with our clients, we must remember our obligations and duties to the legal system and to not allow ourselves to be forced to have hearings about four words. When we avoid such hearings, we are doing the very best for our legal system, our client’s litigation objectives, and their pocket books.