Young lawyers representing parties in lawsuits have a long learning curve. As a young lawyer you are amazed that clients actually hire you for your expertise, listen to your advice, and follow your recommendations. What may take longer to learn is one’s responsibility to the legal profession, the public, and the courts under ethical rules. Even if a potential client has money for a retainer and wants to hire you, there may be important reasons that you, as a lawyer, decline to represent them.
Perhaps the most important reason, to be blunt, is that the person is a jerk and wants you, as their lawyer, to inflict as much pain, anguish, emotional and monetary punishment on the opponent as you can; i.e., be their “muscle.” Certainly any self-respecting lawyer is not going to engage in criminal activity and risk their attorney license and freedom just to please a client. But a lawyer also has ethical rules that prohibit them from taking a “scorched earth” or “take no prisoners” approach to litigation.
Here are just a few of the ethical rules which Minnesota lawyers must follow:
• “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to the law but to other considerations such as moral, economic, social, and political factors that may be relevant to the client’s situation.” Minn. R. Prof’l Cond. 2.1.
• “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law.” Minn. R. Prof’l Cond. 3.1.
• “A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.” Minn. R. Prof’l Cond. 3.2.
• “A lawyer shall not: . . . in pretrial procedure, make a frivolous discovery request or fail to make a reasonably diligent effort to comply with a legally proper discovery request by an opposing party[.]” Minn. R. Prof’l Cond. 3.4(d).
• “It is professional misconduct for a lawyer to: . . . engage in conduct involving dishonesty, fraud, deceit, or misrepresentation” or “engage in conduct that is prejudicial to the administration of justice[.]” Minn. R. Prof’l Cond. 8.4(c)-(d).
The Minnesota Supreme Court has also adopted “Professional Aspirations” to guide attorneys, which include the following:
• “A lawyer owes allegiance, learning, skill, and diligence to a client. As lawyers, we shall employ appropriate legal procedures to protect and advance our client’s legitimate rights, claims, and objectives. In fulfilling our duties to each client, we will be mindful of our obligations to the administration of justice, which is a truth-seeking process designed to resolve human and societal problems in a rational, peaceful, and efficient manner.”
• “A lawyer owes courtesy, candor, cooperation, and compliance with all agreements and mutual understandings to opposing counsel, in the conduct of an office practice and in pursuit of the resolution of legal issues. As professionals, ill feelings between clients should not influence our conduct, attitude, or demeanor toward opposing counsel. Conduct that may be characterized as uncivil, abrasive, abusive, hostile, or obstructive impedes the fundamental goal of resolving disputes rationally, peacefully, and efficiently. A lawyer owes the same duty to an opposing party who is pro se.”
Unfortunately in family law the worst often comes out in litigating parties and occasionally in their attorneys. I recall from private practice that some clients would be upset that I was being cordial to the opposing attorney in and out of the courtroom. Apparently their approach to the divorce case was “I hate my spouse and their lawyer, so you must also.” As judges we do our best to insure that lawyers do not follow the expectations of their clients to “take no prisoners” for several reasons:
1. It is unprofessional and harms the administration of justice and public confidence in it.
2. It is demeaning to the parties and their witnesses.
3. It costs money in increased attorney’s fees and court costs (each motion fee is $100).
4. It may adversely affect the children’s emotional health and well-being now and for many years to come
In summary, lawyers must seriously consider declining to represent a prospective client who wants to “extract a pound of flesh” from the opposing party. If they are not so willing, they may find it hard to sleep at night and may face discipline from the Lawyers Board of Professional Responsibility, causing even more sleepless nights. Clients with such unreasonable expectations, also, are rarely satisfied.
JUDGE STEVE HALSEY, Wright County District Court, is chambered in Buffalo and is the host of “The District Court Show” on local cable TV public access channels throughout the Tenth Judicial District. Excerpts can be viewed at WWW.QCTV.org. Go to Community and click “The District Court Show.”