In his “From the Chair” column in the October 2017 edition of Los Angeles Lawyer Magazine, John Keith – the 2017-2018 chair of the Los Angeles Lawyer Editorial Board – wrote the following: “It is axiomatic that, as attorneys, we have a duty to advocate for our clients’ interests zealously within the bounds of the law. It is inherent in our role that we fight other peoples’ battles, but this duty encourages us to identify with our clients and view their battles as our own.”
Let me first start by saying that California does not require zealous advocacy. In fact, zealousness has been specifically removed from statutes in California and elsewhere because words have meaning and it has long been recognized that the meaning of words influences human behavior. When you consider that zeal is defined as “fervent or enthusiastic devotion, often extreme or fanatical in nature,” it’s understandable that problems would occur if lawyers were required to act in such a manner.
In fact, as a result of such “problems” due to the belief lawyers had that they are obligated to zealously advocate for their clients, a “Civility Oath Rule” was adopted by the California Supreme Court, which became effective May 23, 2014.
Prior to the enactment of that Rule, lawyers admitted to the California Bar were required to take the following oath:
I solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution of the State of California, and that I will faithfully discharge the duties of an attorney and counselor at law to the best of my knowledge and ability.”
Commencing May 23, 2014, the oath that newly sworn in California lawyers must take includes the following: “As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy, and integrity.”
Notice that the chair of the Los Angeles Lawyer Editorial Board somehow still held the belief that lawyers have a duty to zealously advocate for their clients over three years after the California Supreme Court’s adoption of the “Civility Oath Rule” in an effort to halt such zealous advocacy. Unfortunately, John Keith is by no means alone in the mistaken belief that lawyers have such an obligation.
For example, on November 3, 2016, I attended a program titled Ethics for Lawyers, in which a Certified Family Law Specialist discussed lawyer civility, among other things to a room full of family law attorneys. Throughout his presentation, he kept reminding us that as family law attorneys, we have a professional obligation to “zealously advocate” on our clients’ behalf. This mistaken belief didn’t surprise me at all, considering this attorney’s professional reputation; however, I was dumbfounded that he was lecturing other family law attorneys on the topic of legal ethics, and that he was perpetuating the myth among family law practitioners that they were legally required to zealously advocate on behalf of their clients. Knowing why the “Civility Oath Rule” was adopted, by hammering into the minds of the attorneys that they have a duty to zealously advocate, his program almost certainly guaranteed that those who heeded his advice would not conduct themselves “at all times with dignity, courtesy, and integrity.”
When so many California lawyers erroneously believe they are required to zealously advocate, one must wonder how much unnecessary damage and expense they cause as a result.
Clients and potential clients would benefit knowing if their attorney or an attorney they are considering retaining holds the misguided belief that they have a professional obligation to “zealously advocate” on their clients’ behalf. If so, the best advice I can give is to look elsewhere for legal representation and continue to look until you find a competent attorney who knows otherwise.
Now, I’d like you to consider the remainder of Keith’s comment, which was as follows:
“It is inherent in our role that we fight other peoples’ battles, but this duty encourages us to identify with our clients and view their battles as our own.”
Having practiced law for over half my life, it’s always been my understanding that people contact attorneys because they are seeking their assistance in solving a problem. As such, is it inherent in an attorney’s role that they “fight other peoples’ battles”? Does assistance in solving a problem necessitate fighting battles? Does fighting battles help in that regard?
I’m not a gambler, but I’d venture to bet that such a belief leads to approaches and behaviors that have caused a great many people to believe that lawyers actually create conflict. Not surprisingly, the greater the conflict level, the more time it typically takes to bring the matter to a conclusion and the higher the cost, financially and otherwise. If clients seek legal counsel to help solve problems and instead find that such assistance actually creates unnecessary conflict or otherwise worsens it and also comes at a great expense, might that cause potential clients to think twice before considering lawyer involvement? How might this play out in attorney/client relationships?
If you aren’t in a battle and you aren’t looking for one, how do you think involving lawyers who believe that “it is inherent in [their] role that [they] fight other people’s battles” will play out?
How about if you currently find yourself in a battle and you are hoping to end it, rather than perpetuate it?
What about Keith’s belief that lawyers have a duty “to identify with [their] clients and view their battles as [their] own”?
The following is an excerpt from my article titled Decreasing Conflict in Joint Custody:
“There’s an old saying, ‘A man who is his own lawyer has a fool for a client.’ That proverb means that self-representation is likely to end badly because of the lack of objectivity – i.e. impartiality, bias, prejudice, fair-mindedness, neutrality, open-mindedness, detachment, dispassion.”
In order to help their clients to problem-solve, isn’t it important that attorneys possess and maintain some degree of objectivity? I guess the answer to that question depends upon whether the attorney’s job is to assist their clients in problem-solving or whether their job is to create or otherwise exacerbate conflict.
When hiring an attorney, buyer beware!
Mark Baer is a mediator, conflict resolution consultant and collaborative family law attorney. He has decades of experience working with families, received his basic mediation training in 2008 and has been an ongoing student and thought leader in mediation, conflict resolution, and peacemaking ever since. He has crafted a reputation within the industry for his psychologically-minded and relationship-centered approach. Mark is also a well-known writer and columnist for a number of publications on the interplay between psychology and conflict resolution within the field of family law, as well as familial and interpersonal relationships in general. He has had a regular “Psychology and Family Law” column in the San Gabriel Valley Psychological Association’s award-winning bimonthly newsletter since 2008. A number of Mark’s articles have been referenced in books, law review articles, think tank studies, and elsewhere.
Mark has been selected as a Southern California Super Lawyer since 2012 for alternative dispute resolution (which includes mediation and collaborative law) and family law. In 2017, he was elected a Fellow of the American Bar Foundation, in recognition of exemplary dedication to highest principles of the legal profession, commitment to the welfare of society, and support for the ideals, objectives, and work of the American Bar Foundation.