Just Win Baby? Ethical Considerations and Litigation Tactics in High-Stakes Cases

• Published in: The Health Lawyer 2022-02, Vol.34 (3), p.3-19
• Main Authors: Demetriou, Andrew J, Taylor, Lisa D
• Format: Article
• Language: English
• Subjects: Attorneys; Conflicts of interest; Litigation; Professional ethics; Professional football; Professional responsibilities; Responsibilities; Threats
• ISSN: 0736-3443

The earliest statement of the American Bar Association on professional ethics was the 1908 ABA Canons of Professional Ethics, which provided that a lawyer owes '"entire devotion to the interests of the client, warm zeal in the maintenance and defense of his [sic]1 rights and the exertion of his [sic] utmost learning and ability' to the end that nothing be taken from him, save by the rules of law, legally applied. "4 The current ABA Model Rules of Professional Conduct (Model Rules), adopted in 1983,5 reference zeal in advocacy as part of a lawyer's duty of diligence, in context of the limitations imposed by other rules and the avoidance of offensive tactics or failure to treat other persons involved in the legal process with courtesy and respect.6 Having said that, the Model Rules contain provisions which can be read in ways that provide rationalization for a range of conduct that may strike some as offensive but be viewed by others as entirely within the scope of their professional duties. [...]the rule prescribes several aspects of what constitutes competence, which go beyond mere knowledge of the law and include the responsibility to exert reasonable diligence in investigating facts and other matters relevant to the representation.8 This means that the lawyer may not simply take the client's word for key factual issues relevant to the representation. "Rules of Engagement" (Model Rule 1.2) The stock in trade of the lawyer is providing advice to clients on legal matters, especially in situations where the client's proposed or actual course of conduct verges into questionable areas of legality.9 The lawyer is also expected to be loyal to the client's interests - this is at the root of the ethical obligations of independence from considerations other than the client's interest10 and avoidance of conflicts of interest.u Further, the client has the right to determine the scope and objectives of the representation, and the lawyer is obligated to follow that direction even if the lawyer may disagree.12 As our colleague William W. Horton13 has stated on many occasions: "the client is not always right, but the client is always the client."