Missouri attorneys are well aware of Canon 7, which mandates every attorney to “represent a client zealously within the bounds of the law.” Disciplinary Rule 7-101(A)(1) provides that “a lawyer shall not intentionally … fail to seek the lawful objectives of his client through reasonably available means permitted by law and the Disciplinary Rules.” DR 7-101(A)(3) provides that “a lawyer shall not intentionally … prejudice or damage his client during the course of the relationship.”
But what does it mean to be “zealous” for a client? Does it mean that anything an attorney does that is lawful and not barred by another canon is OK? Are attorneys required to be disagreeable, uncooperative, unreasonable, and unruly, all in the name of being zealous?
Over the years, I have heard many attorneys say “I am just doing my job” or “I am just representing my client.” But when does attorney conduct become so zealous that it is no longer effective and, in fact, is counterproductive? It is sort of like the old TV show “The Price is Right,” in which you tried to guess the price of a product, coming as close as you could without going over the top and guessing too high. If you guessed too high, you automatically lost. Being “zealous” can be very similar.
If an attorney becomes uncooperative, unreasonable, and unruly, he or she risks providing their clients with a disservice rather than a service. Attorney conduct can set the tone for the proceedings or negotiation process. In this world, we definitely reap what we sow. If an attorney refuses to provide any information informally, the other side will probably do likewise, thereby causing delays, uneasiness, bad feelings, and inflated legal fees. If attorneys schedule matters without contacting the other side, unnecessary motions, conflict, legal fees, and uneasiness are birthed and nurtured. The tone will have been set unless and until someone rises above it.
If an attorney asserts unreasonable objections to requests from the other side, without at least offering a good faith response as to what we feel will eventually be required, the other side is very tempted to do likewise. People tend to get self-righteous when they feel wronged. “How dare they” is a common response, followed quickly by “I’ll show them.” Oftentimes this self-righteous response causes unsightly things like road rage, abrupt endings to phone conversations, countersuits, and cross-motions. Many seem to have a difficult time turning the other cheek. However, if we lay down our self-righteous indignation, the spirit and tone of the proceedings tend to take a turn upward, instead of spiraling downward ad infinitum.
I heard a story years ago about a gentleman who went to a marriage counselor and said, “I hate my wife and want to get a divorce.” The counselor suggested that if the man really hated her, then before filing for divorce, he should follow these instructions for 90 days: “Do everything your wife likes. Take her to her favorite restaurants and places. Never complain, get angry, or say a harsh word. Do extra work around the house that she does not even expect you to do.” Then, the counselor reasoned, “when you leave her in 90 days, you really will being pulling the rug out from under her as she will be losing this kind person and her life will be turned upside down.” The disgruntled husband thought that sounded perfect, so he decided to try it. When the man returned to the marriage counselor in 90 days, he joyfully reported that he no longer wanted to leave his wife. By being so cooperative and agreeable, his wife had changed and was doing the same back. He now loved his marriage.
The same principle holds true in the professional relationships attorneys have. I urge all attorneys to follow this approach to the treatment of opposing counsel for 90 days or so. They may discover that they actually like their job a lot more and will still be zealously serving their clients.
If attorneys work to establish a spirit of reasonableness and cooperation, both sides benefit. Both sides are then working toward a fair result, rather than trying to rob, cheat, club, and humiliate the other side. If we sow good seed, we reap good fruit. If we sow bad seed, we are fortunate if we reap any fruit.
If we go the extra mile to be reasonable and cooperative, despite what the other side is up to, we might be surprised to see the other side follow suit. We raise the bar, so to speak. It is hard to keep getting angry at someone who treats you fairly and courteously despite your discourteous conduct.
If there is a two-foot long sandwich in a room with several extremely hungry people who do not know each other and are on the verge of starvation, a tendency is to be zealous for yourself and grab the whole sandwich to make sure you get fed and live. What is the motive behind that behavior? It seems clear that it is a fear. But if one person treats his neighbor as he would like to be treated and gives some of the sandwich to the other hungry people, that spirit of fear is lifted, and the mood in the room changes from one of selfishness to one of neighborly love and cooperation.
Additionally, if everyone grabs for the sandwich, in the name of “zealousness,” portions of the sandwich will almost assuredly get mangled, fall on the floor, get stepped on and not get eaten by anyone. A big mess will almost certainly result. People will not even be able enjoy the pieces they snatched because others are hovering over them and grabbing at what they have. In short, it is an adversarial system that is out of control. No one is satisfied or has any peace.
The goal is to change the climate in the room—to be reasonable, to be cooperative, to go the extra mile for the other person, and to share what you have with others. Let others go first. Gain their trust so that you can all have some of the sandwich and enjoy the process.
Let’s assume peace has not yet descended upon the room. Instead someone has grabbed the whole sandwich, and everyone else is seemingly in dire straits. What are you to do? Many feel they must try to grab the sandwich from the one who has it. After all, that’s what the other guy did. Then what ensues? Grabbing, biting, and scratching from every direction. In essence, many of us at times regrettably lower ourselves to the behavior level around us. Is that fruitful and productive? While our primitive survival instinct may say “yes,” I feel that a more in-depth reflection will reveal otherwise.
When we are each looking out for ourselves, no one really wins. Oh, we may win for the short term and get to pig out and eat much of the sandwich … today. In fact, today we may even get stuffed and overfed. But what about when the next sandwich comes and again there is no sharing? Same result: Some food falls to the floor, some gets ripped and mashed, and the winner gets it all … but possibly none the next time.
Let’s go back to the situation of having missed out on the sandwich that is now in the hands of the “bad guy.” Instead of continuing to fight, how about conceding that he or she can have it all but gently pointing out that next time he or she might not be so fortunate? While he or she is getting fed today, it might be weeks before he or she savors another morsel. Also, if you are fortunate enough to get a piece of the sandwich, how about sharing it with someone else? A spirit of cooperation can help get everyone fed a little each time.
The same applies with our adversaries in the legal system. If attorneys do the unthinkable and go the extra mile for their adversary, their adversary will tend to realize that they do not have an overzealous one on the other side and are far more likely to work with the other attorney in a spirit of cooperation so everyone enjoys not only the meal but the process. When this happens, everyone benefits. The client avoids a lot of the anxiety and stress associated with the adversarial system — and legal fees.
The client may even pick up on this spirit of cooperation and may make peace and forgive the other side, thus perhaps letting go of the bitterness that is eating them alive. We can all be transformed. When this happens, the entire process tends to run much more smoothly. Going to work might even become more enjoyable and less combative, adversarial and stressful. Attorneys can still be zealous for their client — just in a different sort of way than our instincts often dictate.