Balancing Zealous Advocacy With Civility

All lawyers know they owe a duty of zealous advocacy to their clients. But how far does one push that principle? For lawyers engrossed in the often fast-paced, high-pressure world of law practice, it's easy to forget such questions.  The focus is on billing hours and satisfying clients.

Like many lawyers, Brian Annino had plenty on his plate working at a mid-sized firm in Atlanta.  One of Annino's primary clients was a large mortgage bank, and thus he was handling a large number of fairly routine foreclosure actions.

However, Annino's perspective of his role as an advocate changed radically one day in an Atlanta courthouse when he met privately with the pro SE defendant in one of his client's foreclosure actions - an elderly woman whose husband had recently passed away. In an inspiring essay in the latest issue of the ABA Journal, Annino shares how he tempered his zealous advocacy of the bank's interests with sensitivity for the widow's plight resulting in a resolution that saved the woman's house from foreclosure while protecting the bank's rights.

Those who read Annino's story may conclude, "well, no one would want to hurt a widow." However, that narrow interpretation misses the broader message of the story. Instead, we hope lawyers reading Annino's essay will consider whether stress levels wouldn't drop and more amicable resolutions couldn't be reached were they prepared -- even in the tougher litigations involving corporate parties -- to take a step back and temper zealous advocacy with civility and decency towards their adversaries.

As Annino concludes his story, "we owe an important duty to our clients to zealously advocate their interests and should never abandon that principle. Rather, we should use it as a compass when compromise is mutually beneficial to all parties."

 

An order holding an attorney in a domestic relations matter in criminal contempt was reversed by the Tennessee Court of Appeals. The attorney allegedly had instructed her client to violate a trial court order awarding the adverse party two nights of overnight parenting every other week. The court here held that the order allegedly violated lacked the essential element of specificity--when the parenting time would occur--to sustain the conviction. Rather, the evidence suggested that the attorney had "vigorously challenge[d]" an oral order that she believed was invalid. The court viewed the conduct as zealous advocacy rather than criminal contempt.

The attorney, however, did not escape without criticism from the court. Her appellate brief had characterized the trial court actions as "lies" that were "calculated" and "illegal." The court chided her: "While [the attorney] has the right, indeed the duty to zealously represent her client in this matter, and herself in this appeal, her use of the brief to convey her contempt for the trial court is inexcusable." The court viewed the attacks on the trial court as "impertinent and unprofessional" and in a footnote stated that "...we decline to re-publish that which should never have been published by [the attorney]."