We all know the proverb, “You can catch more flies with honey than with vinegar.” Its message is that it is easier to get what you want by being nice than being arrogant and uncooperative. Yet many lawyers believe that using rude and insolent behavior demonstrates that they are being zealous advocates and will accomplish more for their clients.
Judges disagree. For example, in Raymond W. Pontarelli Tr. v. Pontarelli, 393 Ill. Dec. 676, 683, 35 N.E.3d 68, 75 (2015), the Appellate Court of Illinois explained that: “Zealous advocacy must be reasonable and diligent advocacy,” “Zealous advocacy must fall within reasonable bounds of propriety,” and “Zealous advocacy *** must not deteriorate into zealotry ***.”)
Consider two examples.
On November 12, 2008, I argued the case of Phila. Gas Works v. Workers’ Comp. Appeal Bd. (Amodei), in the Pennsylvania Commonwealth Court. As opposing counsel and I were approaching the area where argument would occur, we stopped and shook hands. After all, we have known each other for years, and have been on opposite sides of many cases. The judge conducting the appellate argument congratulated us on our professionalism. We looked at each other with surprise, smiled, and proceeded.
After all, the argument was not personal. We knew the case had enormous implications. The decision of this seven-judge panel would define how to calculate the way in which receipt of pension benefits would reduce the amount of workers’ compensation benefits an injured worker would receive. The case was significant, but we respected each other and never for a moment took the case personally. One of us would win, one would lose.
Since that case, our offices have handled many cases, and our ability to represent our clients, while being courteous, has inured to the benefit of our clients and the courts before which the matters were heard.
Not every case goes that way.
Consider the lead example in “Essay: Stupid Lawyer Tricks: An Essay On Discovery Abuse,” 96 Colum. L. Rev. 1618, which described how documents were produced in a defamation against filed by Philip Morris Company against the American Broadcasting Company:
… lawyers for ABC alleged Philip Morris had produced twenty-five boxes containing approximately one million documents. These were the “critically sensitive flavoring documents” relating to ABC’s charge that Philip Morris spiked its cigarettes with nicotine. The documents had been transferred onto a special dark red paper with squiggly lines, which made them hard to read and impossible to photocopy. ABC’s lawyers alleged that the paper gave off noxious fumes that made it “difficult to work with the altered copies for extended periods of time.” The smelly paper was reported to have nauseated one partner and given someone else a headache. The extent to which these documents were truly nauseating (that is, more nauseating than any other million documents that have to be reviewed) remains in dispute. Nonetheless, counsel for Philip Morris, New York’s Wachtell, Lipton, Rosen & Katz and Richmond’s Hunton & Williams, agreed to produce some of the documents on non-odiferous paper.
The author of this article, Cardozo Law Professor Charles Yablon, posited that sanctions and public embarrassment are often insufficient to remedy the problem created by overzealous lawyers. Rather, he suggested that:
… the best solution for lawyer misconduct in discovery proceedings is the same one parents use when their kids act up on long car trips – tell them to “shut up and knock it off,” preferably in a really loud voice. … In recommending such an order, I assert that discovery abuse is a problem of moral education that can be ameliorated, rather than a prisoners’ dilemma in which lawyers maximize value by being nasty, brutish and short with each other. Telling lawyers to “knock it off” also recognizes a distinction between bad actions and bad lawyers. One problem with current law is that many judges are reluctant to pull out the big strap of discovery sanctions except when convinced that the lawyers involved are so utterly recalcitrant that they deserve a serious whupping. This piece suggests that a major improvement in the moral education of litigators would be effected by increased sanctioning of smaller, more annoying discovery abuses with smaller, more annoying punishments.
The decades since the publication of this 1996 essay demonstrate that lawyers will be lawyers, like two-year-olds will be two-year-olds, and that most suggested methods for curbing abuses do not work, whether they take the form of sanctions or are of the style suggested by Professional Yablon.
Professor Yablon’s article was even cited in In re Marriage of Davenport, 125 Cal. Rptr. 3d 292 (Ct. App. 2011), where the conduct of counsel was egregious. According to the court opinion, “The evidence presented was clear and convincing that uncivil, rude, aggressive, and unprofessional conduct has marred this case from the very beginning from counsel Watters.” The decision further questioned the wisdom of the husband’s law firm’s decision “to ‘educate’ a newly admitted lawyer with a case that involved millions of dollars of varied assets in California and other states, with a long term marriage and complicated trust holdings. With no background in either civil or family law litigation, Mr. Andrew Watters admitted to the Court that he was taught to litigate this case with unbridled aggression. These uncooperative and uncivil courses of action have caused Mrs. Davenport unnecessary delays and unnecessary attorney fees and costs.” In re Marriage of Davenport, 194 Cal. App. 4th 1507, 1522, 125 Cal. Rptr. 3d 292, 305 (2011).
What makes all of this relevant is the current debate about whether “zeal” and “zealous” belong in the Model Rules of Professional Conduct, or more specifically, in the Comments to the Model Rules. This debate invariably includes a discussion of what is commonly referred to as “scorched earth” tactics, which to many has become analogous to “zealous advocacy.”
An overview of the Model Rules of Professional Conduct is helpful. The word “zeal” appears once in the Model Rules, while “zealously” appears three times. These words never appear in the actual Rules. Rather, they appear in the Preamble (three times) and once in a Comment to Rule 1.3.
References in the Preamble focus on a lawyer who acts “zealously” to assert or defend a client’s position. The Comment to Rule 1.3 (“Diligence”) further explains that “A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.”
Thus, zealous advocacy is not an integral part of the Rules. Moreover, Comments to the Rules are not a basis for discipline.
So, why do lawyers act this way? Probably because they believe it either helps their clients in some way, or is how they were taught, and therefore they are not going to change.
Scorched-earth tactics have as their genesis the belief by military leaders that the only way to defeat an opponent is to destroy its ability to respond. Litigation does not work the same way as military combat. While scorched-earth tactics may increase the costs of litigation, they almost never advance the ultimate matter or resolution, with most litigants withstanding such an onslaught.
Supreme Court Justice John Paul Stevens summarized why civility matters in his August 3, 1996 Opening Assembly Address at the American Bar Association Annual Meeting:
In the same vein, let me remind you how often the paths of lawyers cross and recross over and over again. Even though the profession has grown immensely and many of you practice in more than one community, I venture the prediction – and this is a reliable prediction – that you will encounter one another far more often than you might expect. Lawyers have long memories, particularly about the conduct of colleagues or adversaries. My favorable impression of Thurgood Marshall was first formed when, as a law clerk, I watched him argue in the Supreme Court; it was confirmed when he was an adversary in a litigated matter in the 1960s; and reconfirmed when I was privileged to become his friend and colleague in recent years. I have an equally vivid memory of my first meeting with Byron White at Pearl Harbor; of reading, in 1947, memoranda Byron had written as a law clerk to Chief Justice Vinson; of an interview with him when he was Deputy Attorney General; and of course of our work together on the Court.
I recognize that these examples are not typical, but they illustrate the point that lawyers’ contacts with one another are often memorable. Virtually everything you do in your professional capacity becomes an indelible part of your reputation. An advocate who does not command the confidence of the judge bears a much heavier burden of persuasion than one who never misstates either the facts or the law. Moreover, litigation is far more difficult and time-consuming when opposing counsel do not trust one another. Bluffing may be worthwhile at the poker table; in serious negotiation and in litigation it usually does nothing more than cast an enduring shadow on the advocate’s credibility.
Second, let me remind you of the importance of civility. A polite rejection of a settlement proposal can be just as firm as a show of indignation, and a succinct objection as telling as an unnecessary harangue. We are all familiar with the aphorism that an attorney should emphasize the facts when they are with her, concentrate on the law when it is favorable, and make lots of noise when both the facts and the law support her opponent. Perhaps we judges sometimes leap to conclusions more promptly than we should, but I can assure you that most judges regard the incivility of counsel as a confession that they would rather not discuss the relevant facts or the controlling law. Courtesy is an essential element of effective advocacy.
The next time you hear the words “zealous advocacy,” consider whether they mean that you are doing your job to the best of your ability, with courtesy and professionalism, or were seeking to destroy your opponent without regard for how barren the landscape will become.
About the Author
Daniel J. Siegel is the principal of the Law Offices of Daniel J. Siegel, and chair of the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility. He provides ethical, technoethical and disciplinary guidance, as well as appellate, writing and trial preparation services to other attorneys. He can be reached at firstname.lastname@example.org.