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Should You Break Bread With the Enemy?

Most of us deplore the lack of civility in the legal profession. But does a desire to increase collegiality and respect mean that we should bond with opposing counsel at social activities? That's the question posed by Jon Katz in this thought-provoking post at his Underdog Blog.

Katz describes an invitation he received asking him and fellow criminal defense attorneys to turn up for a happy hour with county prosecutors. In addition, the invitation solicited contributions of up to $50 to pay the prosecutors' bar tab in recognition that government lawyers don't earn much. Though some of his colleagues viewed the party as a way to improve relationships with opposing counsel, whom they work with everyday, here's what Katz had to say:

First, paying for prosecutors' happy hour refreshments creates dissonance in me as to my clients' role in the mix. That is right, no clients were invited to the happy hour. If I went to this shindig at a tapas restaurant two blocks from the county courthouse, I would think it a good idea to invite some of my clients, to humanize them (while assuring they do not discuss their cases), to respect them rather than having a private get-together with the opponents of them and me, and to highlight that the business as usual of marginalizing criminal defendants is unacceptable. Second. I wonder how such purchases jibe with bribery statutes, even though I do not believe such behavior should be made criminal.

Ultimately, Katz can't stomach the idea of sitting down with prosecutors and law enforcement, many of whom "degrade, dehumanize and disrespect" his clients. Moreover, he wonders:

How would I feel about a client seeing me breaking bread with the same prosecutor or cop who is trying to get my client locked up, particularly in instances where I feel the prosecution is based on false evidence, an effort to obtain a disproportionately severe sentence, or a law that I feel should be stricken or heavily decriminalized in the first place (e.g., I want the legalization of marijuana, prostitution, gambling, criminal libel and obscenity and the heavy decriminalization of all other drugs)?

I admire Katz's conviction -- it's not often that attorneys maintain and adhere to principles the way he does. And having represented criminal defendants myself, I realize that they don't always understand the necessary niceties of, for example, shaking opposing counsel's hands or saying hello, and may sometimes view these civilities as a sign of disloyalty or a lack of zealousness. At the same time, I do wonder whether a stand-offish manner to opposing counsel hurts a lawyer's client in the long run by making a prosecutor less likely to cooperate or exercise discretion to drop a case or reduce charges. And I also wonder whether we as lawyers cede too much to clients when we decline accepted professional civilities because we fear offending our clients.

What's your view on all of this? What kind of relationships do you have with opposing counsel -- and is there a difference between civil and criminal proceedings?

Posted by Carolyn Elefant on July 29, 2008 at 11:00 AM | Permalink | Comments (7)


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