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Does Professional Courtesy Help or Hurt Clients?

In the past couple of years, I've seen articles and seminars such as this one that decry the decline of civility in the practice of law.  But is there such a thing as being too civil?  Can lawyers go too far to accomodate opposing counsel and avoid conflict such that their acquiescence hurts their clients? That's a topic that my colleague Dan Hull ponders in the post  Is 'Professionalism' Just a Lawyer-Centric Ruse?

Here's a sampling of how Hull says some clients might prefer rules of professionalism to read to serve those clients more efficiently:

  • Be nice -- but if in doubt, use the rules. If you feel you know the lawyers you are dealing with, we will follow your advice and instincts. If you are in doubt about the lawyers, or if it might compromise us to deviate from the formal procedural rules, please stay close to those rules.
  • If you have, or would like to have, a personal relationship with opposing counsel, that's fine, but don't let the relationship hurt us--the client. We don't care as much as you do about your maintaining or developing collegiality with other lawyers in your jurisdiction; in fact, we could not care less.
  • If opposing counsel shows animosity toward you for following the procedural rules and keeping things moving, that is tough. This is not about the lawyers. We hired you to represent us. We would like you to get this done. Again, as your client, we seldom think that aggression and persistence are "unprofessional".

Generally, I agree with Hull, which is why I frequently consult with my clients on decisions like whether to grant an extension of time, though technically, that's considered a strategic matter within the lawyer's discretion (in contrast to, say, a settlement proposal, where a client indisputably has decisional authority).  But sometimes, the result isn't so simple.  Often, it's not just an adversarial opponent who may delay a proceeding; a judge may be dilatory as well.  Sometimes, it does not make sense to file a motion to compel to secure documents when the judge might take several months to issue a ruling.  Better to take your chances accomodating your opponent, since you might get what you need more quickly.   

Still, Hull raises a significant issue often overlooked by most attorneys.  Often, as his post title suggests, we use professional courtesy as a pass to avoid vigorously representing a client for whatever reason - fear of confrontation or appearing too aggressive, concern about our reputation amongst our colleagues.  The lawyers whom I admire most (and there are few) are those who manage to straddle that narrow line between commanding respect of colleagues and judges while still acting tough enough to get the job done.

Posted by Carolyn Elefant on July 21, 2006 at 08:38 PM | Permalink | Comments (1)


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