Ethics in Brief

Ethics in Brief is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association.

A Delicate Balance: Ethical Duties and Zealous Advocacy

Clients expect and deserve counsel devoted to their cause who will champion the clients’ interests. But what if a client’s demands for aggressive advocacy conflict with a lawyer’s ethical duties under the Rules of Professional Conduct and the State Bar Act? In that circumstance, which set of duties controls?

Client and counsel must recognize intemperate, uncivil behavior by an attorney may have unwanted but entirely predictable consequences, up to and including disqualification and discipline for the attorney. Other foreseeable effects include increased litigation costs and prejudice to the client.

Lawyers should “set the tone” at the beginning of any representation, with both the client and opposing counsel, whether in a transactional setting or in litigation. As the Second District Court of Appeal recently observed:

The practice of law can be abundantly rewarding, but also stressful. The absence of civility displayed by some practitioners heightens stress and debases the legal profession. Those attorneys who allow their personal animosity for an opposing counsel or an opposing party to infect a case damage their reputations and blemish the dignity of the profession they have taken an oath to uphold. (Crawford v. JPMorgan Chase Bank, N.A. (2015) 242 Cal. App. 4th 1265, 1266.)

Crawford is an extreme example of conduct by counsel that crossed the line. There, an attorney threatened opposing counsel with pepper spray and a stun gun at a deposition. When defendants moved for terminating sanctions, plaintiff filed an opposition that was openly contemptuous of the trial court.

The Court of Appeal upheld terminating sanctions. It recounted repeated examples of egregious conduct by counsel, and not just behavior that all should recognize as uncivil. Seemingly lesser offenses, such as technical or procedural objections to discovery, did not go unnoticed.

For example, the Court noted the sanctioned party complained of opposing counsel’s failure to “meet and confer” regarding a discovery dispute. As the Court observed: “Crawford threatened opposing counsel with physical harm. Yet he complains about the lack of opposing counsel's attempt at informal resolution. The irony is not lost on us.” (Crawford, supra,  242 Cal. App. 4th 1265, 1274.)

A lawyer may aggressively advocate for a client and still maintain decorum and respect for the judicial process and those involved. Adherence to certain basic principles, including the “Golden Rule,” should ultimately serve counsel and client well.

-- Eric R. Deitz