Rod Smolla is the President of Vermont Law & Graduate School. Last week, Rod was the guest speaker at the Professional Responsibility Program’s (PRP) annual meeting. In my opinion, Rod’s presentation served as a model of the duty of competence that all lawyers would do well to emulate. I also believe that it provides insight into civility, professionalism, and a lawyer’s perception of an adversary’s conduct.
With dozens of PRP members serving as “justices” and peppering him with questions, Rod argued two cases that are pending before the United States Supreme Court: Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina. Each case involves the use of race as a factor in college admissions. The Court heard argument last fall and decisions should be released soon.
To be clear, Rod argued both sides. That’s right: without notes, Rod spent 10-15 minutes making arguments in support of the positions taken by Students for Fair Admissions, then another 10-15 as if representing Harvard and UNC.
You would not have thought that Rod short-changed either client. Nor would you have been able to discern his personal views on the issues before the Court. Rod knew the facts, knew the law, and made effective arguments for each side.
To me, knowing both sides of a matter is an aspect of competence.[1] I also consider it critical to complying with the duty to provide a client with candid advice.[2] A duty that, as I blogged here, includes delivering advice that the client might find unpalatable.
That Rod’s presentation exemplified competence is easy to grasp. What you’re probably wondering is “Mike, what does it have to do with civility & professionalism?” Great question!
In April, I asked whether Vermont’s legal profession has a civility problem and, if so, what should be done about it. The post was spurred by Andrew Manitsky’s efforts as President of the Vermont Bar Association. Andrew has made civility a focus of his presidency. As such, the VBA conducted a civility survey earlier this year. I referenced the results in my post. Andrew wrote more about them in his most recent President’s Column for the Vermont Bar Journal.[3]
The survey asked respondents to identify the types of unprofessional behavior they’d experienced over the previous six months. 49% reported having dealt with lawyers who misrepresented or stretched the facts. 34% indicated that they’d experienced lawyers who either misrepresented the law or made baseless legal arguments.[4]
I do not doubt that there are lawyers who stretch or misrepresent the facts and the law. Having screened complaints for 9 of the past 11 years, I’ve seen it. Not often, but I have. However, on this issue, there’s something else that I’ve noticed over the past year.
It’s not uncommon for lawyers to contact me to ask about what they perceive to be another lawyer’s lack of candor. Basically, they’re looking for a “gut check.” It’s difficult for me to respond because I don’t know the entire case or, more importantly, each side of the story. So, it’s not uncommon for me to ask, “why do you think that was deceitful?”
Lately, I’ve been struck by how frequently the explanation of “why it’s deceitful” doesn’t demonstrate deceit as much as it demonstrates a fair disagreement as to what happened and what the law requires in response. In other words, my anecdotal experience has been a perceived uptick in what boils down to “I don’t agree. So, they must be lying.”
Maybe.
But maybe not. Not every disagreement means that one side is lying. Which gets me back to President Smolla’s example.
Rod made persuasive arguments for each side. He was able to do so because he thoroughly understood the facts that helped and hurt each side, the law that helped and hurt each side, and the strengths & weaknesses of each side’s arguments. To me, that’s competence.[5]
Again, my recent experience is anecdotal and the uptick I perceive likely lacks statistical relevance. However, I’ve started to wonder whether some of the reports that “other lawyers lie about the facts and law” might not reflect a lack of civility & professionalism. Rather, I wonder whether a percentage, however small, might reflect a failure to understand both sides of the matter.[6]
In sum, don’t hesitate to call for a “gut check.” But, if you do, don’t be surprised if I ask whether opposing counsel’s “false statement” is exactly the statement you’d be making if in their shoes.[7]
Be like Rod.
And, as always, let’s be careful out there.
[1] See, V.R.Pr.C. 1.1.
[2] V.R.Pr.C. 2.1 requires a lawyer to “exercise independent professional judgement and render candid advice.”
[3] Andrew’s President’s Column begins on page 5.
[4] There were several other choices for respondents to select. However, these two examples of unprofessional behavior are relevant to this post.
[5] Obviously, it wouldn’t work in a real-life setting for numerous reasons, but I think it’d be a fantastic experiment to have two lawyers arrive for a contested trial or argument not knowing which side they’d be assigned to represent. It reminds me of a saying in coaching that’s reserved for the coaches who most impress other coaches: that coach can beat yours with theirs and theirs with yours.
[6] I’m not suggesting that the failure is intentional or borne of an ill motive. It simply could be a lawyer who is so invested in their client’s position as to lose track of the axiom about which, as kids, the First Brother and I often stressed to our parents: there are two sides to every story & argument.
[7] Don’t worry if your answer is “yes.” First, our conversation is confidential. Second, and more importantly, it will give you the chance to sing the first line of the chorus to Taylor Swift’s Anti-Hero to me. “It’s me, hi, I’m the problem it’s me.” That’d be a fantastic memory for us to have. Yes, this footnote was but a lame excuse to add to the list of Taylor Swift songs I’ve referenced on this blog. Also, congratulations on making it to footnote 7 of this post!
Ethical Grounds 