Law Students Need to Learn to Pay Attention to Their Gut Feelings and How that Will Help Discern What Course to Take in Different Scenarios that Arise in Practice
Law students need to know that, once they are practicing law, at times they will feel uncomfortable, a feeling in the gut that ought to get their attention. What they also need to know is that, at times, a lawyer’s duty to the client requires them to live with that uncomfortable feeling. All too often, however, that uncomfortable feeling is something that should lead them to reconsider the “means” by which they handle representation. Model Code of Professional Responsibility Rule 1.2 allows for the attorney to determine the means of accomplishing the client’s objectives. Too few law students and lawyers realize the degree of flexibility that Rule permits a lawyer to handle herself consistently with her value system—and in a way that is likely to build a reputation in the Bar, and among the judiciary, of which she can be proud.
An example of a situation in which one will feel uncomfortable but not be able to relieve that feeling is, for instance, when one has a friend who is an attorney. That friend, you know, will be filing suit against a client who has you on retainer to represent them on any matter that arises. What if that friend mentions that she's going to sue "next week before the statute of limitations runs" when you know that the SOL will run before that--in other words, you know your friend is mistaken on the SOL? Can you say anything to your friend? Absolutely not. Again, you'd be violating your duty to your client. So some situations are ones where lawyers have uncomfortable feelings but cannot sacrifice her client's rights.
What's an example in which one may have an uncomfortable feeling and be able to do something about it, so that the lawyer handles the “means” of litigation differently from an approach suggested by the client? Well, say your client is sued and your client asks you to delay the suit and to find anything you can to make it longer and "bleed" the other side of money. You look at the complaint and it states claims. You could file a motion for more definite statement challenging one paragraph in the complaint that you think is an arguably vague. Such a motion is typically considered a "responsive pleading" that will keep a client out of default. A hearing on the motion would have to occur before the case would proceed, so there would be delay such as your client wants. On the other hand, opposing counsel is going to know exactly what you're doing--"playing games.” Discovery is typically the means by which a party clarifies the details on which an opponent is pursuing a claim. Moreover, when you get to a hearing, a judge is going to see that you filed a motion for a more definite statement over one paragraph in a complaint that everyone can tell states claims. So the judge will likely see through your tactics too. Do you really want to become a lawyer known as a "hired gun" that will delay suits, play games with opponents, eat up the court's time just because you can? If your answer is "why not?,” consider some pragmatic reasons not to do this (for you and your client). The opposing counsel often will not be so reasonable with you if you treat her/him in this fashion. You also use up credibility with the court by such tactics, something that can hurt your client in this very case. Most importantly, you'll know that you're doing something -- to keep your client happy -- but which you know to be what's known as "sharp" lawyer (not “sharp” as in intelligent, but sharp as in sly). Are you compromising the value of honesty--filing a technical pleading to get delay, to force the other side to spend more money, rather than having a legitimate reason for forcing a hearing? Over time, will handling litigation in this fashion produce a reputation in the bar and among judges you don't want, one that won't serve you well in handling your cases? How will you think of yourself if you become the lawyer who milks a case for everything you can and forces an opponent to spend as much as possible? These are the kinds of things I hope your journal entries will explore.
--Professor Ben Madison, Regent University School of Law