Dream like a Dolphin[Click to read]
I have been informed by an old friend that just because I've decided to be a shark does not mean that I can't dream like a dolphin. This was a relief! I was really worried that I was going to have to change in some fundamental way in order to be an attorney. Or at least to be a good attorney.
Turns out my relief was short lived. Right now I am studying legal ethics (see previous Oxymoron post) and I have discovered a rule that I just KNOW is going to be my down fall. It goes like this :
A lawyer shall not knowingly ... fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel...
In English this rule means that you have to tell the judge that your case is a loser even if the other attorney is a loser. I was counting on being better prepared and better informed and just plain better than opposing counsel. That was how I was gonna win my cases, build a reputation and eventually become a LEGEND. (Don't laugh, that was really my plan)
But now I am forced to factor in this annoying little rule. I've always asserted that in order to make a cogent argument you must first understand the opposition. In order to understand the opposition, you have to learn their arguments. Once I've learned their argument I am duty bound to tell the court what their winning case is, if they couldn't figure it out for themselves! (Its the judicial equivalent of If You Give a Mouse a Cookie ~ If You Give a Lawyer Controlling Precedent)
You might think that there is a simple solution here. "Diva," you'll say, "Just look into your side of the case and turn a blind eye to the other guy." ("Blind Eye To The Other Guy" new reality show about lawyers, clients and trial tactics) I've thought of that. Come on, thinking about this stuff is what I do. But there are other rules that make this tactic unethical. Let's take a look at one that goes like this:
A lawyer shall act with reasonable diligence and promptness in representing a client.
In English this means that a lawyer has to do due diligence. (I not only love this alliteration but I practice saying it with a straight face so I can stand up in court one day and say it with authority) We can quibble all day about what is due diligence and what is so-so diligence and what is no diligence at all. Lets keep in mind, though, the phrase most associated with ethical/legal dilemmas; "Zealous advocacy within the bounds of the law."
Finally, consider legal mal-practice for a moment. The sufficiency of my research will be judged by this objective standard; What a similarly situated attorney would have known. In other words, I limit my research at my own peril.
Is the conflict becoming clear yet? If I do a really good job of research and turn up something adverse to my client, I have to tell the judge. But if I do a so-so job of research I may miss something important and then I risk a malpractice suit. Either way the client is not going to be happy. More importantly, I can not be both an ethical lawyer and a legend.
My dolphin dreams are deflating, passing sharks just ate them.