Ethics, Civility, And The Aggressive Lawyer
You don’t have to go far to find a lawyer referring to himself or herself as “aggressive” or “tenacious” (though I have yet to see ads for a “bellicose” or “obstinate” lawyer). It’s not as common to see animals known for aggression (like the Honey Badger) since the Florida Supreme Court said it was an ethical violation for a law firm’s television commercials to make reference to pit bulls in The Florida Bar v. Pape, but there are still plenty of “bulldog lawyers” out there.
It’s not hard to see the intent behind self-described “aggressive” lawyers, who tend to show up most commonly (but not exclusively) in the fields of criminal defense and civil litigation. Someone in the market for a criminal defense lawyer or a litigator, of course, is going through one of the worst periods in their life: they’re either being prosecuted or sued, or they were recently hurt or cheated. The “aggressive” or “tenacious” lawyer swoops in to prey upon their fears and manipulate their emotions, promising them a form of rough justice that sounds loud and angry and looks like the lawyers on television.
What these lawyers don’t mention is that “aggressive” lawyers are hated by other lawyers, who discuss among themselves how to handle these obnoxious bozos as if they were mentally ill, and then try to mentor younger lawyers to not behave that way. They’re hated even more by judges, who have to strain not to hold the poor choice of counsel against the client. Putting on an obnoxious show can entertain clients, but it rarely advances the client’s case; “winning” in the law looks less like Lt. Kaffee yelling about the truth in court than like than Adm. Nelson wandering through his gardens pondering new battle tactics that will crush the French and Spanish fleets.
Of course, none of my complaints above are new. Every year, bar associations across the country host CLE seminars on “civility” (I was part of a similar ABA panel earlier this month) where practitioners politely nod in agreement when the panelists talk about how the duty of “zealous advocacy” doesn’t mean “act like a jerk,” then go back to obstructing each other’s depositions and document requests in as many ways as they can imagine. So it goes.
But beyond the lions, tigers, and bears advertising and the yelling at depositions (which never, ever accomplishes anything) there’s another problem that isn’t addressed nearly as often, one that I think is even more damaging: the tendency of lawyers to undercut their competitors to potential clients by criticizing the steps taken or proposed by their competitors in the course of representation.
Take criminal defense. I don’t practice criminal defense, but I do represent clients with civil rights claims, and sometimes people still in the midst of a prosecution will contact me. If it’s about defending against the charges, I demur, and tell them they either need to raise their concerns with their defense lawyer and trust that lawyer’s tactical judgment, or they need to find themselves another lawyer. That often leads down the rabbit hole into a conversation about how the person found their lawyer — this is one of the drawbacks of being generous with my time — and what a subsequent lawyer (not me or their first lawyer) said about the efforts of their first lawyer.
More than a few times, the caller has told me that, after they hired a criminal defense lawyer, some time elapsed, some proceedings occurred, they began to feel lost in the process, and until they eventually sought out a second opinion. That is, of course, their right, and it’s also where the problem starts: the second criminal defense lawyer, in a bid to take over the representation, often criticizes the person’s first lawyer as not being “aggressive” enough, faulting them for bogus problems like failing to have “called the ACLU,” “alerted the media,” “filed a civil rights lawsuit,” and “demanded an appeal of the order.”
Like I wrote, I’m not a criminal defense lawyer, but I know enough to recognize when some opportunistic lawyer is grandstanding and misleading a potential client. The net effect of “altering the media” or “filing a civil rights lawsuit” and the like in the midst of a prosecution is somewhere between “diddley-squat” and “prejudicial to the defense.” Yet I hear this over and over again.
I don’t mean to pick on criminal defense lawyers. It’s not like personal injury lawyers are much better, particularly when it comes to high-profile wrongful death or sexual abuse cases (for example, I’ve often heard clients say that other lawyers promised them insane amounts of money in damages, a blatant ethical violation). Clients with those sorts of cases are smart enough and well-informed enough to contact several law firms at the same time, and I generally encourage those clients to speak with other lawyers, to sit down and discuss the case with them, and then, just like if they were hiring a mechanic or a doctor, go with the one they trust.
More than a few times, after this sort of law firm interview process, the client will come back to us genuinely shocked that we did not recommend they immediately hold a press conference. Despite what those other lawyers may have said, a press conference often does little to encourage the negligent corporation to change its ways and little to compel them to offer you a reasonable settlement for your claim without the pain, expense, and delay of litigation. There is a greater likelihood that it will make you look greedy — take a look at the comments that come in after a wrongful death case is announced. All it will really accomplish is getting the lawyer’s name in the paper.
Many corporate or insurance defense lawyers are no better. They make their money and their reputation by turning civil litigation into a bloody war of attrition. Some intellectual property lawyers have turned the corporate lawyer’s penchant for manufacturing litigation work into a business model, where the troll lawyer simply files a lawsuit and then watches the corporate defense lawyers fall over themselves to manufacturer work, eventually sinking their own client in legal fees and compelling a settlement to make the self-inflicted wounds stop.
We, as lawyers, have to take the initiative to stop the spread of “aggressive” lawyer stereotypes. It’s not just about obnoxious advertising or being rude to opposing counsel; it’s about not encouraging clients to think that the more pugnacious lawyer is the better lawyer. It’s a matter of being realistic and responsible when clients ask, “what are you going to do?” or “what would you have done?” In most cases, if you tell a client, “I will get in touch with the media” or “I would have put the other lawyer in his place,” you are part of the problem, not part of the profession.