“When they go low, we go high” Michelle Obama
“You can’t waller with the pigs and not get dirty” Anon
As I’ve watched the political events of the last few years I’ve heard each side argue that their side needs to “fight dirty” to match the tactics of the opposing party.
I’m not going to voice an opinion on the political issues raised by these arguments, but I’ve learned one thing from personal experience: if you are an ethical litigator you are likely to be faced with a similar personal challenge at some point during your career. Sooner or later, and probably more than once, you’ll have a case where opposing counsel behaves borderline unethically, or even over the line. The list of ways in which a lawyer can skirt the rules to do this are countless. If you’re on the receiving end it can be upsetting and infuriating.
You, as the ethical lawyer, can’t change your opponent’s conduct. You can complain to the judge overseeing your case, but this is often a futile effort – judges have better things to do than oversee the conduct of lawyers, and they often are dismissive when they are asked to do so. The legal profession is expected to regulate itself, so unless the conduct is extreme and obvious, judges will usually remind the lawyers that they are professionals, admonish them to act like it, and send them on their way. Litigation can be like a football game where the players know the rules but are told to apply them themselves, without referees.
So, you face a choice: do you respond in kind, or do you “go high”?
There are two parts to this decision. The first is the conversation you hold with yourself and your colleagues. You’re an ethical lawyer, and you may say to yourself, “opposing counsel is behaving in a way that I think is unethical, but I will maintain my values. I will ‘go high.’ I won’t let myself be dragged into the mud. I’ll create a record and I’ll let the judge know when I think it will be effective, but I won’t let this lawyer drag me down to his or her level.”
Good thinking, but you still have a problem.
The problem is that your client may not agree with you, and this adds to the discomfort of your situation. In the eyes of the client, if the opposing party crosses the line, so should you. By not doing so, they may think you’re putting their case at a disadvantage. And, they may be right!
So, what do you do?
I don’t have any easy answers for a lawyer facing this situation, just as I don’t have an answer for people who may be struggling with this dilemma in the political world. However, I know that, between the natural instinct to fight fire with fire and client pressure, it can be difficult not to be dragged down by an unethical lawyer.
Fortunately, after 40 years of experience I’ve encountered this situation only a few times. In at least one case I can think of the client hired a new lawyer – one whose values were more in tune with those of the client. The client didn’t make it explicit, but it was clear what was going on – the client wanted a junkyard dog lawyer that would counter the opposing junkyard lawyer, and I didn’t fit the bill. Sorry.
In a couple of other cases I told the clients that I would not let the opposing lawyer force me to act unethically, and the clients accepted that.
If (or when) this happens to you, my advice is to continue to “go high.” It may be hard to take, but when you look back on your career from the perspective of many years or decades, you’ll like yourself a lot better, which is all that really matters in the end.