New York Lawyer
July 26, 2001

Q:
Recently I had a case in which I thought our position was pretty weak. I could really see the other side of the case � they had stronger proof, and our client seemed like he was clearly in the wrong.

I said this to the senior partner whose client it was, and he got very upset with me. He said that as a lawyer, I should wholly concentrate on advocating for my client alone and shouldn�t be thinking sympathetically about the other side. I replied that I thought we needed to be realistic about our case and not pretend that we had an ironclad position. He said, �You should be thinking about the case for the guy who�s paying the bills, and figuring out a way to win.�

To me this comes down to intellectual honesty versus a kind of chicanery. As lawyers shouldn�t we provide a candid view for our clients? (By the way, the senior partner has avoided me ever since and not given me a single assignment!)

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A:
I see two different things going on here. First is the age-old issue of the duty that you owe to your client. And second, there�s a question of management � whether the senior partner is dealing with you properly.

Obviously, you need to represent your client zealously and that�s your first duty. But part of zealous representation can and should include a clear-eyed assessment of the merits of the case. This will inform decisions on whether to enter into settlement negotiations and what position to take once you�re at the bargaining table. I often hear about lawyers who take a �win-at-all-costs� stance, and they don�t want to hear about the other side and its strong case. They feel it undermines the psychological edge of competitiveness. Other lawyers are more neutral and even-handed, believing that the client�s (and society�s) interests are best served if the resolution of the case reflects an accurate view of each side�s strengths and weaknesses.

And this second view wins day with legal ethics experts. �The duty of loyalty requires competence,� explains Professor Stephen Gillers of New York University School of Law. �In turn, competence requires lawyers to realistically assess the strength of the opposition and candidly explain as much to the client. It is not a sign of weakness to realize that an opponent has a strong case. Only by making this evaluation can the client intelligently decide whether to settle and for how much. That decision is for the client, not the lawyer. And only by fairly evaluating the other side's case can the lawyer whose client wants to fight be prepared to do so effectively.�

The second question, on the way the senior partner handled things, is more straightforward. Stifling dissent, requiring people to think in particular ways, is always bad news in my book. All points of view should be considered in mulling over how to proceed in a case. If the senior partner makes it clear that he only wants to hear certain types of views, he�s not only constricting the amount of valuable information he can get, he�s also being overbearing and providing a less-than-positive work environment.

While it may be impossible to bring him around to your view, the approach I�d take would be to consistently emphasize the client�s best interests. You can say, �Of course I want the best outcome for the client. I�m worried that if we go to trial we�ll lose big-time and then the client will be upset that we didn�t settle.� If he won�t listen, seek out partners who aren�t allergic to different viewpoints.

Sincerely,
Holly English
Principal Consultant, Values at Work