Most attorneys have the tendency to match their opponent’s aggressive or “hardball” tactics. But is it possible to use fairness, integrity, and civility to deflect and de-escalate antagonistic behavior of opposing counsel?
By Wendy Williamson, Attorney and Mediator
I played tennis in high school and learned quickly that I tended to play to the level of my opponent. Attorneys have the same tendency with predictable results. I often marvel at the different persona an attorney can bring to the mediation table based upon who her opponent is. As an attorney and family mediator, I genuinely enjoy working with attorneys and respect their hard work. From my neutral perspective and from working with the same attorneys in different cases, I have seen the effects that both good and bad combinations of personalities can have on cases.
I struggle with the destructive impact that toxic relationships between attorneys can have on mediation, their clients’ outcome, the children involved, our profession, and the legal system. Commentary  of Ethics Rule 1.3 states: “The lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.” Ralph C. Losey observed: “Naturally, lawyers frequently engage in overzealous representation, and clients normally react favorably to this behavior.” Mercer Law Review (2009).
Case Study: A Toxic History
Making a mess by matching an opponent’s aggressive tactics during divorce proceedings is just not worth it. Attorneys can have a high-conflict relationship based upon actual and perceived hardball tactics in prior cases. Each would passionately explain that a strong offense is the only effective defense against their aggressive opponent. Discovery disputes, contempt motions, and ex parte hearings are more likely. By the time the parties arrive at mediation, lines have been drawn and the heavy artillery is in hand. Offers start in the realm of ridiculous and often cause a quick and ugly end to negotiations. It is not unusual for their clients to have a look of shock or desperation when they realize mediation is ending without closure. The possible outcomes of this toxic relationship can be:
- a client incurs higher legal fees due to offensive tactics or responses
- their case takes longer to resolve due to high emotions and extreme demands
- clients are left with more legal fee debt than assets at the end of litigation
- a client’s relationship with their co-parent or children deteriorates as a result of litigation tactics
- opportunities to negotiate an earlier, less costly settlement are wasted.
Do these possible outcomes present ethical issues or professionalism issues or neither? The easier answer is that combative lawyering is not an ethical issue because the lawyers are diligently advocating for their clients. It is much more difficult to address the complex and entrenched professionalism problems inherent in legal warfare.
The Supreme Court of Georgia “believes there are unfortunate trends of commercialization and loss of professional community in the current practice of law. These trends are manifested in an undue emphasis on the financial rewards of practice, a lack of courtesy and civility among members of our profession, a lack of respect for the judiciary and for our systems of justice, and a lack of regard for others and for the common good.” [Aspirational Statement of Professionalism] Combative lawyering is the most visible demonstration of this current trend. What does professionalism require of us?
It Is Possible to Take the Higher Road?
If we don’t believe this, our profession is no better than the worst among us. During mediation, I have witnessed attorneys maintain their focus, efficiency, and dignity in the face of abusive tactics by an opposing attorney. I have watched attorneys effectively counsel their clients to consider compromise, focus on facts and figures, and ignore poor behavior. I have observed attorneys using fairness, integrity, and civility to deflect and de-escalate antagonistic behavior of opposing counsel. “Competence has also played an important role in tempering excessive zeal in diligence. By tradition, the most highly skilled do not need to resort to adversarial excess to prevail. Their competence alone will carry the day without the use of bluster and sharp elbows.” [Losey, 2009] It is not only possible, it is necessary to respond to overzealousness with calm professionalism.
Practice Sympathetic Detachment
In mediation, the most effective attorneys are able to communicate to their clients both the strengths and the weaknesses of their case. Effective attorneys evaluate their cases realistically and caution their clients about the costs and risks of trial. Our Aspirational Ideals urge lawyers to “maintain the sympathetic detachment that permits objective and independent advice to clients.” One of our goals in practicing professionalism is to earn the privilege of being “the moral voice of clients to the public in advocacy while being the moral voice of the public to the clients in counseling.” The lawyer who loses the detachment required to remain objective will escalate his own client, distort his client’s expectations, and lose the moral voice needed in counseling the client toward a realistic resolution.
Avoidable Fees? Is There Such a Thing?
A report by the Special Committee on Resolution of Fee Disputes of the ABA noted that “disputes concerning fees are universally recognized as constituting the most serious problem in the relationship between the Bar and the public.” Generally, the legal system accepts that an hour worked reasonably supports an hour billed. Under the Aspirational Statement of Professionalism, attorneys commit to “expeditious and economical achievement of all client objectives.” Attorneys should “aspire to fair and equitable fee arrangements.” To protect themselves and their clients, attorneys must realistically estimate, regularly communicate, and periodically re-estimate their legal fees to keep clients aware of the accumulating cost of litigation. A lawyer must effectively walk the fine line between adequate preparation versus legal fees and expenses that exceed a client’s capacity. If an attorney wins the case and renders the client destitute, it is a perilous problem for our profession.
Retired Chief Justice Norman Fletcher said it best: “I have concluded that professionalism, in a legal sense, is to a great extent practicing the golden rule. It is not ‘do my opponent in before my opponent does me in,’ but rather, it is ‘do unto your fellow attorneys, the judges and society as you would have them do unto you’.”
Wendy Williamson has been a practicing attorney and mediator in Savannah, Georgia since 1986. Wendy served as Executive Director of the Mediation Center for ten years and recently joined the Cohen Team of Miles Mediation in Savannah. www.milesmediation.com
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