Flies, Honey, Vinegar, & Ethics

My mom always said, “You catch more flies with honey than vinegar.”  While I have not personally conducted any experiments to test this theory, it seems credible – a fly is more likely to become stuck in honey than to drown in vinegar.  Even in the absence of empirical evidence, it is ancient common wisdom.  It dates back at least as far as 1744, to no less an accomplished experimenter than Benjamin Franklin:

Tart Words make no Friends: a spoonful of honey will catch more flies than Gallon of Vinegar.

Poor Richard, 1744. An Almanack For the Year of Christ 1744. 

  

Speedy, The Alka-Seltzer Spokestablet

Adagial Earworms

Some things, like Mom’s advice, stick in your head, especially when reinforced by repetition.  Like “Plop, plop, fizz, fizz, oh what a relief it is”; “That’s a spicy meatball”; and more recently, “When your money goes further, so can your flooring.”  Comparatively, ethics codes suffer from not having been written by “Mad Men,” and not being a collection of incredibly annoying catchy jingles and taglines.  Every now and then, however, some ethics rule becomes deeply-planted in the mind to occasionally resurface. 

Actor Jack Somack

In my case, one such rule is "A lawyer does not violate [any duty] by acceding to reasonable requests of opposing counsel."  This aphorism reflects the philosophy of Edmund Burke, applying it to the allocation of authority between lawyer and client.  A lawyer is a client’s representative, not a delegate.  An attorney is not duty-bound to strictly follow a client’s instructions as a delegate would be.  Rather, a lawyer has the right, if not a duty, to exercise independent judgment and discretion in the handling of a case unless doing so would genuinely prejudice a client’s meritorious cause.

Imagine my surprise, then, when I went hunting for this adagial earworm in the Colorado Rules of Professional Conduct and came up empty.  I searched Colo. RPC 1.2, which discusses the allocation of authority between lawyer and client, Rule1.3, which sets forth the requirement that a lawyer act diligently, and the rest of the Colorado Rules.  Zip.  Nada.  Zilch.

 

I did find vestigial traces of the concept I recalled in the Comments to Colo. RPC 1.3:

·     “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.” [Comment [2]]; and

·     “A lawyer's duty to act with reasonable promptness, . . . , does not preclude the lawyer from agreeing to a reasonable request for a postponement that will not prejudice the lawyer's client.”[Comment [3]] 

But not the precise language I remembered, and nothing as poetic.  Neither Comment to Rule 1.3 captures the beauty or breadth of the guidance I recalled.  This is more than the difference between the majestic cadence of the King James Bible and the utilitarian syntax of the New International Version.  Comment [2] may be summarized as “in representing a client you are not required to be a jerk,” while Comment [3] is limited in scope to “request[s] for . . . postponement.”  Both are sound ethical guidance.  However neither express, nor confer, a broad grant of authority to an attorney to apply the Golden Rule in dealings with opposing Counsel.

Certain that I had not coined the maxim about acceding to the reasonable requests of opposing counsel myself, I went hunting and, to my relief, found it in the now-abandoned Model Code of Professional Responsibility – more specifically in DR 7-101(A)(1):

DR 7-101 Representing a Client Zealously.

A. A lawyer shall not intentionally:

1.   Fail to seek the lawful objectives of his client through reasonably available means permitted by law and the Disciplinary Rules, except as provided by DR 7-101(B). A lawyer does not violate this Disciplinary Rule, however, by acceding to reasonable requests of opposing counsel which do not prejudice the rights of his client, by being punctual in fulfilling all professional commitments, by avoiding offensive tactics, or by treating with courtesy and consideration all persons involved in the legal process.  (Emphasis added.)

As shown supra, the remainder of the sentence emphasized above mostly survives in Colo. RPC 1.3, though it has been demoted to a mere comment.  The emphasized “Acceding Clause,” however, is nowhere to be found in the Model Rules.  Considering its virtue, one might wonder why it did not survive.  To understand why it did not, a little ethics history is required – a lesson that might aptly be called “The War on Zeal.”

Richard Nixon on the Campaign Trail

The War on Zeal

Personally, I blame Richard Nixon.  His defense of the Watergate break-in burned the phrase “overzealous aides” into the public consciousness – or at least mine.  “Zeal,” which without the amplifying prefix simply means “eagerness and ardent interest in pursuit of something,” became an epithet.  And there it was – right in the title of DR 7-101.

Regardless of whether Watergate was the impetus, the “War on Zeal,” and the movement to eradicate it by certain members of the ethics community, cannot be denied.

The ABA Model Rules scrupulously avoids the word “zeal,” in all formatives, in its Rules, casting it out from its time-honor place in the title of Canon 7 to the Model Code: “A Lawyer Should Represent a Client Zealously Within the Bounds of the Law,” and even earlier in the Canon 15 of the 1908 ABA Canons of Professional Ethics (“The  lawyer  owes  “entire  devotion  to  the  interest  of the client, warm zeal in the maintenance and defense of his  rights  and  the  exertion  of  his  utmost  learning and ability,” to the end that nothing be taken or be withheld from  him,  save  by  the  rules  of  law,  legally  applied.”). 

Only five references to “zeal” remain in the Model Rules: in the Preamble and Scope, and in Comment [2] to Rule 1.3:

·    “As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system.”  [Preamble and Scope, Comment [2]];

·      “[W]hen an opposing party is well represented, a lawyer can be a zealous advocate on behalf of a client and at the same time assume that justice is being done.”  [Id., Comment [8];

·      “These principles include the lawyer's obligation zealously to protect and pursue a client's legitimate interests, within the bounds of the law. Zealousness does not, under any circumstances, justify conduct that is unprofessional, discourteous or uncivil toward any person involved in the legal system.”  [Id., Comment [9]; and

·      “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.  A lawyer is not bound, however, to press for every advantage that might be realized for a client.”  [Rule 1.3, Comment [1]]

(Emphasis added.)  Even so downgraded, the drafters of the Model Rules were careful to impress that “zeal” does not justify obnoxious or truculent conduct, or require a lawyer to press every advantage a client may have.

Notwithstanding this demotion, the relegation of “zeal” to the Siberian reaches of the Model Rules was not enough for some jurisdictions, who considered even these few outlying and apologetic references the word to constitute a “Zealous Advocacy Loophole.”  See David D. Dodge, When Lawyers Behave Badly: The “Z” Word, Civility, and the Ethics Rules, Arizona Attorney (April 2008), p.20. 

So pernicious was the notion of attorney “zeal” to the Arizona Supreme Court that, in adopting its version of the Model Rules, it banished the word altogether.  The so-called “Arizona Solution” was subsequently followed by several states, including Indiana, Louisiana, Montana, Nevada, New Jersey, Oregon, and Washington.  Id., n.2.   

New York (a jurisdiction reputed for the zealousness of its advocates), in its haste and, uh, zeal to signal its own virtue in joining the “Arizona Solution” movement, deleted “with zeal” from Comment [1] of its 2008 adoption of Rule 1.3 without any other change, rendering the comment partly unintelligible.  See Paul C. Sanders, Whatever Happened to “Zealous Advocacy?,”47 N.Y. Law Journ.47 (March 11, 2011).  The scar left from zealously yanking off the offending scab of “zeal” remains in the New York enactment of the Model Rules.

Not all ethicists have embraced the “cancel culture” against zealous representation.  As Paul Sanders details in Whatever Happened to “Zealous Advocacy?:

This debate is far from over. The proponents of  the  retention  of  the  “zealous  advocacy” requirement,  including  such  heavyweights as  Professors  Hazard,  Hodes,  Freedman  and Bernstein, have made powerful arguments for the benefits of reinstating the requirement. In fact, most practicing lawyers who grew up with a requirement of “zealous advocacy” are probably unaware that the requirement ever went away.

See also Sylvia Stevens, Whither Zeal?: Defining Zealous Representation, Oregon State Bar Bulletin (July 2005) (“In a nutshell, zealousness means doing your best and being dogged in pursuit of the client’s aims within the bounds of the law and the ethical rules. It is compatible with civility and courtesy and, in my humble opinion, the highest manifestation of professionalism.”).

In Colorado, Judge Steve Briggs has correctly pointed out that Colorado’s Model Rules contain no duty of “zeal”:

Diligence, competence, confidentially, with no conflicts of interest: elegant simplicity. The rules are comprehensive, describing a lawyer’s duties not only to clients, but also to others. In short, the word "zealous" is not a word needed to describe a lawyer’s ethical duties.

Steve C. Briggs, The Myth and the Mischief of Zealous Advocacy, 34 Colo. Lawyer 1, p. 33 (January 2005).  Judge Briggs clearly endorses the view that the Model Rules containing a “Zealous Advocacy Loophole”:

The duty of zealous advocacy may be empty of meaning, but it is not without import. Put simply, the duty to be a zealous advocate is the single most common justification used to claim that the duty to the client is paramount, and that a lawyer is therefore justified in minimizing or even ignoring the other duties expressly stated in the Colorado Rules. It is often treated as synonymous with a duty to be ruthless—even dishonest.

Id. 

With all deference and respect to the opinion my friend Judge Briggs, I side with Oregon Assistant Attorney General Sylvia Stevens, that zealous representation, “is compatible with civility and courtesy and, . . . , the highest manifestation of professionalism,” and with Professor Monroe Freedman that “‘the traditional aspiration’ of zealous advocacy remains ‘the fundamental principle of the law of lawyering’ and ‘the dominant standard of lawyerly excellence among lawyers today.”    Freedman, Henry Lord Brougham and Zeal,  34 Hofstra L. Rev. 1319 (2006). 

Zeal in representation should not be confused or conflated with overzealousness.  Nor should ethical Canons and Comments be mistaken for ethics rules.  They are aspirational only, and if our profession is to not simply be “just another job,” performing it with some zeal should not be condemned so long as principals of fairness and courtesy are also practiced.  Simply striking the word “zeal” from the ethical lexicon is tokenism of the worst kind.

But here we must leave the War on Zeal to return to the topic at hand – another banishment, and one for which there is no meritorious defense – elimination of the “Acceding Clause.”

Where “Acceding to the Reasonable Request of Opposing Counsel” Still Has a Home 

Not all jurisdictions have jettisoned “Acceding Clause” in adopting the Model Rules.  Just as Colorado preserved and expanded DR 7-105(A) (“A lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter”) in Colo. RPC 4.5(a), the North Carolina State Bar preserved DR 7-101(A)(1)’s Acceding Clause in N.C.RPC  1.2(a)(2).  So, too, did the D.C. Bar.  See D.C. RPC 1.3, Comment [7].  Michigan also retains this language as a rule, MRCP 1.2(a), as does Massachusetts in its enactment of Model Rule 1.2(a).

Why Not an Affirmative Duty?

It’s interesting that the ABA and jurisdictions like Colorado and the District of Colombia treat acceding to opposing counsel’s reasonable requests as a kind of absolution; a dispensation from the requirements of Rule 1.3.  One does not fail to act diligently by refusing to “press every advantage” or “agreeing to a reasonable request for a postponement.”  Others jurisdictions, such as North Carolina, regard acts of professional courtesy as belonging Rule 1.2, allocating authority between the lawyer client. 

It probably belongs in both rules, though philosophically I favor its placement in Rule 1.2.  As Edmund Burke counseled the electors of Bristol regarding the duties of elected officials, lawyers are client representatives, not client delegates; we should have the right not to act odiously in the conduct of a client’s case.

Charles Dickens

Imagine, for example, if an attorney were obligated to strictly follow the instructions of the “Queer Client” in Chapter XXI of The Pickwick Papers on peril of professional discipline:

"Put every engine of the law in force, every trick that ingenuity can devise and rascality execute; fair means and foul; the open oppression of the law, aided by all the craft of its most ingenious practitioners.  I would have him die a harassing and lingering death.  Ruin him, seize and sell his lands and goods, drive him from house and home, and drag him forth a beggar in his old age, to die in a common jail."

Putting aside the glaring issues of abuse of process and meritoriousness of claims presented by the Queer Client’s commands, no lawyer should be ethically beholden to follow such detestable directions.

Significantly, regardless of its form – whether as a rule or a comment; as a prerogative of a lawyer’s authority, or as an exclusion to the requirement of diligence – the Acceding Clause is not affirmative duty in either the Model Code or the Model Rules.  A lawyer is not required to accede to the reasonable requests of opposing counsel, to be punctual, or to avoid offensive tactics.  Rather, a lawyer will simply not be disciplined should she do these things. 

I appreciate the practical consequences of making the Golden Rule an ethical requirement, the breach of which could result in professional discipline, and certainly would foreseeably result in some dubious professional complaints.  Nevertheless – and particularly at a time in which the absence of general civility is universally bemoaned – it seems rather gutless of our profession not to step up to the bar and make the concept stated in DR 7-101(A)(1) something more than aspirational. 

Instead of being stated in the negative (“A lawyer does not violate this rule by . . . .”), Colo. RPC 1.2 could be drafted in a way to make clear both the authority and duty of a lawyer to act civilly toward opposing counsel.  For example:

Notwithstanding any direction from a client, a lawyer has the authority, and shall whenever reasonably possible in the good faith exercise of professional discretion, accede to reasonable requests of opposing counsel that do not materially prejudice the rights of a client, be punctual in fulfilling all professional commitments, avoid offensive tactics, and treat with courtesy and consideration all persons involved in the legal process.

The Colorado Supreme Court has not hesitated to codify morals in other contexts.  Rule 8.4(g), for example, prohibits lawyers, in the representation of a client, from engaging in conduct that:

exhibits or is intended to appeal to or engender bias against a person on account of that person's race, gender, religion, national origin, disability, age, sexual orientation, or socioeconomic status, whether that conduct is directed to other counsel, court personnel, witnesses, parties, judges, judicial officers, or any persons involved in the legal process.

Newly enacted Rule 8.4(i) bars a lawyer from engaging in conduct he “reasonably should know constitutes sexual harassment.” 

Similarly, elevating the Acceding Clause to a rule which emphasizes both the authority and moral obligation of a lawyer to be professionally courteous should not be a professional reach that exceeds our ethical grasp.  

Good Manners, Good Karma, & Good Practice

There is another, pragmatic argument for acceding to opposing counsel’s reasonable requests: Mom was right.

Captain Obvious

Regardless of why one practices the Golden Rule, acceding to the reasonable requests of opposing counsel is simply good karma – what goes around tends to come around. 

When I first started practicing in the 80s (1980s, not the 1880s), being aggressive was synonymous with being a good capable lawyer.  Perhaps this was because my initial practice was commercial litigation.  Or maybe it was the influence of television and movie depictions of lawyers, like L.A Law, The Verdict, and From the Hip, not to mention an endless parade of John Grisham novels. 

Whatever the excuse reason, “scorched earth” was not yet an epithet.  Depositions consisted primarily of lawyers objecting to questions and arguing over the objections, occasionally and briefly interrupted by actual witness testimony, sometimes even something more than “I don’t recall.”  No discovery motion was too insignificant to spend hours fighting over, but of course our hourly rates were considerably lower back when Matsch, Kane, and Finesilver ruled Colorado’s federal bench.

Two things happened to reverse this trend.  First, judges, tired of endless lawyer bickering and relatively frivolous discovery motions, asserted themselves in a variety of ways.  Rules changes compelling an attorney to confer with opposing counsel before filing virtually any motion deterred most frivolous pleadings by forcing lawyers to first hear countervailing arguments and consider how they were likely to play before the court.  Creative innovations, such as 6 a.m. discovery conferences set by Judge Edward Nottingham – colloquially known by the chagrined and chastened participants as “The Breakfast Club” – also sent a clear message.  See Early To Rise (Westword, 27 November 1997).

Second, lawyers who had not already learned that mom was right eventually wised up.  Lawyering is stressful enough without gratuitously instigating abuse, inviting retaliation.  One is considerably less likely to work things out with an opposing counsel who has been given good reason to distrust or dislike an adversary. 

Conversely, winning the trust of opposing counsel through candor, courtesy, and decency – and acceding to reasonable requests regarding discovery, scheduling, and other matters – usually improves the odds of more expeditiously and satisfactorily resolving a client’s problems.  Clients, whose scrutiny of legal bills has increased exponentially along with attorney’s hourly rates, pay ever increasing attention to the progress of their cases, and no long willing to underwrite lawyer wrangling as sport when there is no, or little perceived connection to protecting or advancing their interests.

“As Adversaries Do In Law, Strive Mightily, But Eat And Drink As Friends.”

 

William Shakespeare

Tranio’s observation from The Taming Of The Shrew (Act 1, scene 2, ll. 276–277 ) is not only great Shakespeare, but good advice.   

It is, coincidentally, the motto of Denver’s Law Club, a social  organization founded by young lawyers in 1914 to, among other things, “cooperate in the encouragement and maintenance of a high standard of legal ethics among the members of the Bar of the City and County of Denver,” and which, sponsored by Colorado CLE, annually presents the most entertaining and easiest way to get three ethics continuing legal education credits ever devised: The Ethics Review at the Clocktower Cabaret.

The Law Club

Lawyers who take to heart and practice Tranio’s advice are likely to be happier in their careers, live (or at least practice) longer, and be more effective representatives for their clients.  Acceding to the reasonable requests of opposing counsel is not simply good manners, it’s good karma and smart practice.  Mom was right. 

Thanks, Mom.

Happy Birthday Revised Rule 8.4(c) — What now?

Happy Birthday Revised 8.4(c)!

Revised Colo. Rule of Professional Conduct 8.4(c) turns two years old on September 28.

The original Rule provided “It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”  To this absolute proscription, in 2017 the Colorado Supreme Court appended “except that a lawyer may advise, direct, or supervise others, including clients, law enforcement officers, or investigators, who participate in lawful investigative activities.”  This addition, first proposed by the Court’s Standing Committee on the Rules of Professional Conduct in 2012, was made without any instructive Comment by the Court.

Public response was predictable.  Within days one of my Facebook friends posted:

Of course the Court did no such thing.  In reMark C. Pautler still stands as a stern cautionary warning that attorneys may not personally engage in conduct prohibited by the first clause of Rule 8.4(c).  However, the biennial of the revised rule is about to be celebrated without any published judicial opinion which might add some clarity to the exception, now entering its “terrible twos.”

Into this vacuum, in May the Colorado Bar Association’s Ethics Committee published Opinion 137. As Susanna Speier, Content Director, Blogger, and Social Media Strategist for the Denver Private Investigator Blog observed, the “6,195 word Formal Opinion . . . is not light, late-summer weekend getaway reading material.  Slog through the legalese for a comprehensive discussion and analysis of Rule 8.4 (c) and it will deepen your understanding of its potential impact on your career as a Colorado private investigator.”  While praising Opinion 137, Ms. Speier bemoans “the rule's blatant irreverence for ethical codes that licensed private investigators practicing in the State of Colorado . . . licenses depend on.”  Ms. Speier is not alone; she has plenty of company among members of the Colorado Bar.

The rub for many lawyers is Revised Rule 8.4(c)’s use of the word “direct.”  The verb “direct” may mean “control the operations of; manage or govern.”   However, it may also mean to “give (someone) an official order or authoritative instruction.”  Lexico/Oxford University Press. 

There should be no debate over the wisdom or ethics of an attorney “advising” or “supervising” others “who participate in lawful investigative activities.”  This is a good thing.  There are myriad state and federal laws which must be navigated to lawfully conduct covert operations.  For example, in Colorado an ordinary citizen (but not a lawyer) may record a conversation without the other party’s consent.  This is the so-called “the unilateral consent rule,” one of the great oxymorons of the law.  If, however, the same citizen accesses their spouse’s Gmail account because they know the password, or because their spouse left their browser open, they’ve violated the federal Stored Communications Act.  Similarly, if a law enforcement official goes too far with a covert operation it may constitute entrapment.  If it does, evidence gathered will be suppressed and bad people may go free.  That is not a good thing.  So having lawyers involved in advising and supervising such activities is good – it safeguards the rights of those who are surveilled.

It is not, however, an “exception” to the original Rule 8.4(c).  Providing legal advice to help others conform their actions to the law is not “conduct involving dishonesty, fraud, deceit, or misrepresentation” for which an exception was needed.  It’s just a lawyer doing her job. 

It’s analogous to the situation which Colorado lawyers found themselves in 2014 – caught between the classification of cannabis as a Schedule 1 drug under the Controlled Substances Act, and the fact that cultivation, distribution, possession, and consumption of marijuana is lawful under the Colorado Constitution.  Since the licensure and regulation of attorneys remains, at least for now, the sole province of the states, of course Colorado attorneys should be permitted to advise Colorado citizens and government officials regarding the laws regulating marijuana.  It would be ludicrous to suggest otherwise.  Indeed, a compelling argument can be made that Colorado attorneys have an ethical duty to provide such counsel.  The Colorado Supreme Court – or at least a narrow majority – felt the same way in issuing Comment [14] to Colo. RPC 1.2, providing guidance and comfort to lawyers finding themselves caught between the Scylla and Charybdis of the Controlled Substances Act and Colorado Constitution Article XVIII, secs. 14 & 16.   However, no such illuminating Comment accompanied the revision for Rule 8.4(c).

Absent an official Comment or other judicial guidance, the concern of many in the Bar is that revised Rule 8.4(c) may be read as permitting a lawyer to instigate, as oppose to merely advise or supervise covert operations.  Concerned Bar members view revised Rule 8.4(c) as an invitation to mischief, a slippery slope, a murky ethical twilight zone, and an almost irresistible temptation for lawyers to personally engage in conduct which Rule 8.4(c) expressly prohibits.  At best, revised Rule 8.4(c) is dangerous ethical quicksand without clear markers; at worst it may be treated by some lawyers as a license to evade Pautler, permitting an end run around Rule 8.4(a)’s proscription against violating the Rules of Professional Conduct “through the acts of another.”  This concern is hardly paranoid.  By analogy, courts have for years intently wrestled with the question of whether, and to what extent, an attorney may ethically suggest that a client speak directly to an opposing party without running afoul of Rule 4.2 via Rule 8.4(a)’s anti-circumvention rule.

An equally adamant segment of the Bar feels that if a lawful covert or pretextual investigation is appropriate and good legal advice, why shouldn’t an attorney be free to recommend that a client undertake it, the same way a lawyer ought to suggest that a car accident victim seek a medical opinion for soft-tissue injuries?  To them it seems unnecessarily constraining and contrived to have to hope that a client will sua sponte ask about the advisability of retaining an investigator, or engaging in a lawful covert or pretextual investigation.  Surely compliance with ethics codes should not turn on a lawyer’s creativity in dropping coy hints, such as adorning client conference rooms with portraits of Hercule Poirot, Sherlock Holmes, Miss Marple, Sam Spade, Philip Marlowe, Johnny Dollar, and Frank Columbo. 

Does revised Rule 8.4(c) permit attorneys to skip such subterfuge and initiate the suggestion that their clients engage in lawful covert or pretextual investigative activities, so long as the lawyer does not personally participate?  Where is the line to be drawn between “directing” and personal participation?  In the absence of any official Comment or judicial decision, a “slog” through Ethics Opinion 137 is worth the effort – even required reading.  No, it’s not light summer fare, but alas, summer is over.

Originally published in the 30 September 2019 edition of Law Week Colorado