#1: W.I.N. Your 3 Feet of Influence

This week, I’m counting down the blog posts that were the most-read in 2017.  So far,

Which leaves only 1 more.

Civility

I posted the year’s most-read blog in July.  Ever since, it has remained popular, and about the only post that people mention to me in person. Without further adieu, the post that readers read more than any other in 2017 was a post on civility: W.I.N. Your 3 Feet of Influence.  

Remember: you have a chance to “WIN” every interaction you have.  At work, at home, everywhere you go.  The more interactions you “WIN,” the better we’ll all be.

Thank you for reading this year.   I wish you a peaceful 2018!

And don’t forget that tomorrow is Friday.   Which means there’s one final #fiveforfriday quiz in 2017.  Get in the game!

 

 

50 Resolutions: Don’t be a jerk.

Lawyers can provide competent & diligent representation without being jerks.

Don't Be a Jerk

Last week, I posted The 50 Original Rules.  It’s a post that briefly recaps the history of the conduct rules that apply to lawyers.  Best I can tell, the earliest record of guidelines for attorney conduct in the United States is David Hoffman’s 1836 publication of his Fifty Resolutions in Regard to Professional Deportment.  My post includes each of Hoffman’s 50 resolutions.

181 years later, it’s somewhat fascinating to me how many of Hoffman’s resolutions continue to resonate.  Many are embedded in the rules and our collective professional conscience.  Given my fascination, I’ve resolved to blog about the continued relevance of Hoffman’s resolutions, taking them one at a time.

I don’t know how long it’ll take me to get through all 50.  No matter, if even one of the resolutions resonates with but one of you, this endeavor will have been a success.

Here are my thoughts on Resolution #1.

Summary:  don’t be a jerk.

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Fifty Resolutions in Regard to Professional Deportment

DAVID C. HOFFMAN (1836)

1.    I will never permit professional zeal to carry me beyond the limits of sobriety and decorum, but bear in mind, with Sir Edward Coke, that “if a river swell beyond its banks, it loseth its own channel.”

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Hoffman’s initial resolution not to “permit professional zeal to carry me beyond the limits of sobriety and decorum” remains a crucial concept.  Indeed, the notion that a lawyer’s duties to adversaries, the courts, and the profession limit the exercise of the lawyer’s duties to the client runs throughout the rules.  

Zeal does not trump decorum. 

Here is Section 1 Preamble to the Rules of Professional Conduct:

 

“[1] A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.”

Section 2 states that “[a]s advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.”

Section 9 of the Preamble recognizes that the basic principles of the rules “include the lawyer’s obligation zealously to protect and pursue a client’s legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system.”

As did Hoffman, the Preamble to the rules contemplates that lawyers as more than mere zealots for their clients.  Rather, there is a higher duty to the system, the manner in which it operates, and the manner in which lawyers operate within it.

This idea is reflected in the rules as well.  For example, Rule 1.3 requires lawyers to act with reasonable diligence. The final sentence to Comment [1] states that “[t]he lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved with courtesy and respect.”

Rule 3.5(d) mandates decorum before a tribunal.  I cited to Comment [4] in a disciplinary case in which I prosecuted a lawyer whose zeal exceeded the bounds of decorum:

“Comment [4] The advocate’s function is to present evidence and argument so that the cause may be decided according to law.  Refraining from abusive or obstreperous conduct is a corollary of the advocate’s right to speak on behalf of litigants. A lawyer may stand firm against abuse by a judge, but should avoid reciprocation; the judge’s default is no justification for similar dereliction by an advocate. An advocate can present the cause, protect the record for subsequent review and preserve integrity by patient firmness no less effectively than by belligerence or theatrics.”

Let me say it again:  a lawyer can advocate for the client “by patient firmness no less effectively than by belligerence of theatrics.”

Finally, maintaining decorum at the expense of zealotry is not a concept limited to the rules.  It’s a decision we’ve made as a profession.

In 1989, the Vermont Bar Association adopted Guidelines for Professional Courtesy.   I encourage you to read them.  Most, if not all, are rooted in today’s topic.  The last is my favorite:

  • “Effective advocacy does not require antagonistic or obnoxious behavior. Lawyers should adhere to the higher standard of conduct which judges, fellow attorneys, clients, and the public may rightfully expect.”

In other words, effective advocacy doesn’t require being a jerk.

181 years later, it remains abundantly clear that zeal does not trump civility. As did Hoffman, perhaps we can resolve never to permit zeal to carry us beyond the limits of sobriety and decorum.

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Related post:  W.I.N. Your 3 Feet of Influence

 

W.I.N. Your 3 Feet of Influence

When I was coaching, I used the term “W.I.N.” with my teams.  It stands for “what’s important now?”  Here’s what it means.

In sports, as in life, we can only control what we can control.

Basketball players can’t control a ref’s calls.  But they can control how they react to bad calls.  A player can’t control (or change) the fact that he just made a bad play.  But he can control how he approaches the next play.  A player can’t control whether a teammate works hard in drills.  But she can control her own effort.

What’s Important Now is controlling whatever you can control . . . right now.  In basketball, that means, playing the next play without worrying about the last or looking forward to one later in the game.

Bad call goes against you?  Yelling at the ref is not what’s important now.  What’s important now?  The next play.  Make a bad turnover?  Hanging your head is not what’s important now.  What’s important now? Sprinting back on defense to stop the opponent who stole your pass.

You get the picture.

Last weekend, my dad’s wife shared Sharon Salzburg’s Your Three Feet of Influence with me.  I loved it.  Here’s my favorite quote from the blog post:

It reminded me of W.I.N?  None of us can control how others act or treat us.  But every single one of us can control our response to how others act and treat us.  And isn’t that almost always what’s important now?

As I thought about it, I thought back to my post President’s Day & Civility.  It’s a post in which I referred to Linda Klein’s President’s Message in the February edition of the ABA Journal:  One Word: Civility.  Please read it.

President Klein wrote:

  • “As leaders in society, lawyers must ensure that civility once again becomes a quality that defines us. We need to set the tone for constructive communication and rational decision-making. It starts with us and every individual committing to a more civil manner, insisting that civility be a part of meetings and interactions. Indeed, we need to hold ourselves and our leaders to a higher standard.”

What’s Important Now?  That in the next interaction I have with someone, I’m going to commit to a civil, honest, respectful communication – – regardless of how that person treats me.  I can’t control how that person acts, but I can control how I act.

Opposing counsel acts like a jerk on the phone, sends a rude e-mail, or says bad things about you in court?  You can’t control that.  But you can absolutely control how you respond.

Finally, I’m especially struck by the fact that I’m writing this as I proctor the bar exam. Civility is as important a skill as is a basic knowledge of evidence, contracts, or civil procedure.  As much as I hope that each examinee passes the exam, I’m as hopeful that, upon admission, each practices law by continually striving to W.I.N. his or her 3 feet of influence.  It would make the profession better and serve as an example to all.

Whatever you do next, try to W.I.N. your 3-feet of influence.  It’ll add up.

Civility

This Ain’t No Lawyer Joke

Stop me if you’ve heard this one before: a lawyer walks into a deposition with pepper spray and a flashlight that doubles as a stun gun…..

No joke, i’m not joking.

I can’t do the story justice.  The ABA Journal has it HERE.

I don’t think we need a 1 hour CLE to cover this one: it’s best not to threaten opposing counsel with pepper spray and a stun gun.

So far, no word on whether the lawyer has raised the “Costzana defense” with California’s disciplinary authorities.