The American Bar Association Has Lost Faith In Professionalism, It Seems.

For as long as I can remember, lawyers took pride in that fact that they could pound away at each other in the court room, shout, sneer, mock and beat an adversary into a metaphorical pulp, and put it all aside the second the case was finished. The idea that being friends, even close friends, with an opposing advocate compromised a lawyer’s determination and willingness to fight for his or her client was an anathema to the whole concept of professionalism. During the Civil War, West Point classmates on opposite sides sometimes met before a battle, shared a whisky, old memories and a few tears, and the next day did their best to kill each other. That mindset was analogous to how I was taught lawyers were supposed to behave, and, indeed, did.

Now the American Bar Association has apparently decided that it was all a myth. In  Formal Opinion 494, “Conflicts Arising Out of a Lawyer’s Personal Relationship with Opposing Counsel,” the ABA expresses doubts that many lawyers are up to the task.

“A personal interest conflict may arise out of a lawyer’s relationship with opposing counsel, the ABA now says. “Lawyers must examine the nature of the relationship to determine if it creates a …conflict and, if so, whether the lawyer reasonably believes the lawyer will be able to provide competent and diligent representation to each affected client who must then give informed consent, confirmed in writing.”

The opinion breaks possible personal relationships into three categories:

  • intimate relationships, which involve living together, romantic involvement and sex
  • friendships, which need to be “examined carefully,” with “close” friendships requiring disclosure to clients, and, in some cases, written consent, and
  • acquaintances, which do not require disclosure or consent.

Why the ABA chose 2020 to make this significant departure from traditional cant is a mystery. Once the “appearance of impropriety” was removed from the legal ethics rules, I assumed that the principle was locked in forever that a lawyer, by virtue of being a lawyer, was immune from such human frailties as pulling metaphorical litigative punches or yielding on a client’s interests because of love, affection, or admiration for opposing counsel.

Of course, the fiction never made sense. Comment [11] to Rule 1.7 regarding conflicts of interest read (I assume that with the new Formal Opinion, the Comment is gone or soon will be):

When lawyers representing different clients in the same matter or in substantially related matters are closely related by blood or marriage, there may be a significant risk that client confidences will be revealed and that the lawyer’s family relationship will interfere with both loyalty and independent professional judgment. As a result, each client is entitled to know of the existence and implications of the relationship between the lawyers before the lawyer agrees to undertake the representation. Thus, a lawyer related to another lawyer, e.g., as parent, child, sibling or spouse, ordinarily may not represent a client in a matter where that lawyer is representing another party, unless each client gives informed consent. …

I have always been critical of the limitation of that conflict to relatives. One’s loyalty or affection for a friend can easily be as intense and conflicting as that towards any relative. But the new expansion, if the profession really wants to start admitting human frailty, hardly goes far enough. What about the people a lawyer hates? The true legal professional must keep all emotions and biases out of his or her performance of duties aimed at a client’s needs. The new opinion now covers positive feelings for opposing counsel, but negative feelings are just as great a threat to a lawyer’s “independent judgment.”

You can read the whole opinion here.

12 thoughts on “The American Bar Association Has Lost Faith In Professionalism, It Seems.

  1. I personally have no problem with hating opposing counsel, it just motivates me to be merciless. File motions just to bust shoes, paper them to death in discovery, don’t consent to adjournments, make objections all over the place during depositions to throw them off, interrupt during oral argument, etc. Of course it works best if you are on the defense side. If you are on the Plaintiff’s side you better have a damn good case before you act like that, because I, as a defense attorney, can tell you if you don’t cut the b******* I will never settle another case with your office again. it also works well if you are the prosecutor, because no defense attorney wants to be in a position where he can never get another plea bargain.

    Even so, things get ugly from time to time. The times I have really gotten unpleasant with opposing counsel to the point where I was going to curse them out or fight them are still under 10, but they happen. I have no patience with bullies or sharpers.

      • It depends, and the key is knowing when it will and won’t. Yes, sometimes you have to bite your tongue, bide your time, and put it in the book for later. Someone embarrassed me during a deposition once, and there wasn’t a whole hell of a lot I could do about it, so I waited. Then came a case where he was on the hook for a lot, I was on for a little, but I refused to offer anything to facilitate a settlement, which was close, but fell apart without that. Then at trial he got hit for $500,000 over his policy limits, and I told him “You know, we could have settled this, but for that little stunt you pulled with the deposition in the other case. So ask yourself, before you have to explain this disaster to your client, was that little power trip worth it? I think not, and I hope you lose the client, you goddamned, mother-fucking sonofabitch!”

    • What about for prosecutors? Is it beneficial that they might intentionally refuse reasonable plea deals, prosecute to the maximum allowable by the law, withhold evidence, etc because someone is represented by a lawyer the prosecutor hates?

      • That is completely possible. A fictional example would be Law and Order’s Ben Stone, played by Michael Moriarty, who hated public defender Shamballa Green and defense attorney Arthur Goldman, but never let that get in his way, as opposed to Sam Waterston’s Jack McCoy, who sometimes didn’t hesitate to pull plea deals off the table or refer to his opponent as “Oliver Wendell Blockhead.”

  2. This is another example of a widespread societal shift over the past few decades, the inability or unwillingness to separate professional and personal interactions. Where every disagreement is viewed, at least in part, as a personal attack. A discussion about how best to solve a purely technical problem, quickly morphs into a perceive personal affront by one side or both. It goes beyond conflicting egos. The passionate pursuit of a solution on a strict factual or theoretical basis, now results hurt feelings and other emotional slights that often affects personal relationships.

    Thirty years ago, I would not have thought twice about telling a colleague flat out that their approach to a particular problem will not work; that it contains flaws and tick them off, one by one. Never thinking that by pointing out the errors would somehow damage our personal relationship … and it would not have. Now it might be considered harassment because it creates a threatening work environment. Exposing someone’s ignorance, ignorance you remove by suppling the knowledge he or she lacked or failed to properly apply, constitutes a personal attack.

    In a roundabout way, I’m saying that the professionalism those of us of a certain age took for granted, has indeed changed in many arenas. It has changed to the point where I can see opposing counsels altering their approach because of the potential impact it could have on any personal relation they share. I’m not saying their approach is right, but it is a response to a growing reality, we have become a nation of wimps thanks to a generation who grow up in the age of “participation trophies”.

    • Think about that. What you talk about in that second paragraph consists of telling someone “you’re wrong and I’ll prove it.” That’s particularly bad if you do it in front of others, and, either way, could be seen as a mark of disrespect if the other person is a peer. Now, if you’re the other person’s superior, then that goes with the territory, and you are free to pull them behind closed doors and explain how they are falling short, or to slam them in front of the team. Of course if you do that you risk becoming like the former First Assistant here, who left without any kind of farewell anything and who got no one from this office to attend his funeral when he went down for the dirt nap in 2018.

      • You are correct, that would be appropriate and damaging. I was not thinking of a situation like an open court situation, but more a one-on-one or small group of peers, and considered superiors in that atmosphere as a quasi-peer. I have always looked at debate as a growing experience. If my approach cannot be adequately defended and a different approach accepted, it caused me to reflect on the reasons. My loses/failures allowed me to grow. It is that aspect of a professional debate is being lost

  3. “Why the ABA chose 2020 to make this significant departure from traditional cant is a mystery. ”

    I think that in recent years it’s become obvious that professionals are marrying other professionals almost exclusively, and that often both people work in the same field. Extended to watch dog entities like the bureaucracy and media, it’s become commonplace for supposed antagonists to have common interests.

  4. I did transactional work but I always got a kick out of the car wreck guys in the various firms I was in who did defense work for insurance companies but essentially idolized the plaintiffs lawyers who drove nicer cars, wore better clothes and shoes, and had seemingly boundless time time to play more golf on more expensive and exclusive golf courses. I think the defense guys hoped some day they’d grow up to be plaintiffs’ lawyers. Plus, I saw clear evidence the defense guys were never unduly harsh on the plaintiffs’ guys since they, the plaintiffs’ lawyers, generated the work the defense guys needed to keep the lights on. A weird, symbiotic relationship. “Nothing personal, just business.” And of course, these were the guys who loved going to bar conventions and being on bar committees so they could all yuck it up together and agree they had a great scam going.

    • I spent 3 years as a plaintiffs’ lawyer way back in the beginning. The firm had a nice little niche going for a while, especially with the Federal Employers’ Liability Act, a relic from 1908 that carved out railroads as one of the few employers that employees could sue rather than get workers’ compensation from. They paid me less than what the judges paid their law clerks and let the office go to shit, while the top two guys were glomming all the money for themselves. They were driving high-end cars and trotting off to Europe and Asia for 3 weeks at a time, but God forbid they put any money back into the practice to have an office that didn’t look like a dump. The top guy also mercilessly harassed the law clerks and any good-looking female associates or secretaries.

      Then they made the mistake of thinking carpal tunnel syndrome was going to be the next mass tort after lung disease and hearing loss, and got knocked back on their heels. Suddenly the partners were talking about “we have to make our fifty thousand dollar cases five hundred thousand dollar cases,” and the next thing you knew the firm was dissolving. Of course the two top guys kept their fancy everything, but everyone else got screwed. I walked out of there with nothing but three years’ worth of bad memories and swore I’d never work on that side of things again. I don’t idolize plaintiffs’ lawyers, and neither do any of the defense attorneys I know, and I know a lot of them. To us, they are ambulance chasers and bottom feeders who just can’t make it in any other kind of practice. I have respect for the medmal plaintiffs’ lawyers, who don’t take any old crap that walks through the door. I have respect for the civil rights plaintiffs’ lawyers, who usually are of a better caliber..

      I have no respect for the plaintiffs’ lawyers who push overtreatment, who don’t respond to discovery requests, who always find a reason NOT to produce their clients for deposition, who break balls during depositions whatever the court rules say, who sometimes think they can intimidate you by yelling, and who are overall a bunch of pricks. I don’t give a damn what name is on the inside of their suits, I don’t give a damn if they’re wearing alligator shoes like a guido, I don’t give a damn what their ride is, and I don’t give a damn how much time they spend on the links. If they are on the links it just means they are either not paying much attention to their cases or (more likely) sticking it to their associates, who are working weekends and evenings, often for peanuts, to work the cases up so the partners can dazzle the juries in court.

      • Like me, you’re conscientious, Steve. You’re an outlier, or course. It’s the Irish Catholic thing. I got my case from my mother. She was three quarters Irish, one quarter Anglo-Irish. These days, it’s almost no way to go through life. Don’t be too hard on yourself.

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