The Curse of Compassion for Clients - When Advocacy Sacrifices Objectivity

By William Domnarski

      Clients. We cannot live without them, but at the same time danger lurks when we become too close to them and give them too much of ourselves. They may want what we can give, but to give it can cut into our professionalism.
      We need clients as a necessary condition for the practice of law. A lawyer without clients is just sitting in an office. This is what happened to Charles Francis Adams, the great-grandson of our sixth president and the great-great-grandson of our second president. He reported in his autobiography (he had some time to spare) that after entering the bar, he sat for years in an office in a Boston building owned by his father, without a single bona fide client. Potential clients thought him too rich to need the business.
      It's a tough job being a litigant. Always a realist, the great Learned Hand put it nicely when he noted that "as a litigant, I should dread a lawsuit beyond almost anything short of sickness and death." Almost by definition, clients come to lawyers in crisis.
      Litigation produces turmoil, but even drafting a will can produce its own set of anxieties, especially when both spouses meet with the lawyer and it becomes clear that they have different intentions for their assets. About the only time I've ever had everyone leave my office happy was when I handled real estate transactions in Connecticut. No escrow agents there. One side would get a deed, one side would get a check, and both sides walked out thinking they got the better of the other. Good times for all.
      The truth is, whether civil or criminal, plaintiff or defendant, clients come to lawyers in crisis and are desperate to have their anxieties eased. They come with their vulnerabilities highlighted, raising the predatory instinct in some lawyers. As the 19th century British author (and wag) John Sterling put it, the ideal client is "the very wealthy man in very great trouble." Lawyer/novelist George V. Higgins mused, "a fool in deep trouble will believe anything a lawyer tells him, if it is uttered in sonorous tones and does not contradict anything the client knows."
      Few lawyers have the spunk to turn clients, especially the rich ones, away. Alexander Hamilton could. He once rejected a potential client because he had spoken ill of lawyers. Not many would be deterred by that today. Few also would do what Abraham Lincoln advocated. "Discourage litigation," he said. "Never stir up litigation. A worse man can scarcely be found than one who does this."
      If we try to understand clients, we recognize that they do not necessarily come to get a full description of the legal process and the principles of law in their particular case. They come to hear that someone will help them, will care about them. The criminal lawyer in Tom Wolfe's "Bonfire of the Vanities," Killian, got it right when he told his frightened client that he would be the client's friend. The client would pay him for this gesture, but he would be the client's friend. That is what the client wants: a friend who also happens to be a smart lawyer.
      The friend element means that the lawyer will personally identify with clients and their problems. Clients want lawyers to be able to respond to the opposition with all of their emotional fury.
      Janet Malcolm, the fine New Yorker writer, helps us understand this. She found herself in a much publicized defamation lawsuit in which the plaintiff alleged that Malcolm had distorted the meaning of what the plaintiff had said to her. She was immediately relieved, she recalled in her book on the subject, when her grievance got a sympathetic hearing from her lawyer. She then says that conventional psychotheraphy would start an unpleasurable inquiry into the plaintiff/patient herself while "the law cure never ceases to be gratifying."
      Then, in a remarkable passage, she writes that "what the lawyer says and writes on his client's behalf is gratifying beyond the latter's wildest expectation. The rhetoric of advocacy law is the rhetoric of the late-night vengeful brooding which in life barely survives the skeptical light of morning but in a lawsuit becomes inscribed, as if in stone, in the bellicose documents that accrue while the lawsuit takes its course, and proclaims with every sentence, 'I am right. I am right. I am right.'"
      What Malcolm describes about belicose documents is of course true. It explains the over-the-top briefs, the ones filled with exclamation points and bold lettering (as well as the ones that just sound that way). It also identifies my point. How can a lawyer writing like this, responding like this to the client's needs, flip the switch and not be influenced by the emotion he had to ratchet up to give the client what she most wanted?
      Lawyers who meet the client's powerful entreaties run a risk fundamental to their professional lives. If the lawyers have conformed to the client's expectations, they can easily lose the critical distance necessary for professionalism. It can become easy for the lawyers to take on the world view of their clients in crisis.
      Divorce lawyers, for example, can be difficult to get along with because they spend their days fighting the nastiest, most gut-wrenching fights in the profession. I've had lawyers scream at me over nickels and dimes and treat me as though I were the cheating spouse. "Hey, I'm just the lawyer here," I would say. But I wasn't to them. I was the cause of all their client's pain, anger, and resentment.
      I saw the same phenomenon when a bank wanted to foreclose on a client's property. For the bank's lawyer, I was the deadbeat and I was treated to contemptuous derision. "I'm just the lawyer" meant nothing to this lawyer either. It's just an extension of what leads plaintiff lawyers to see fault everywhere and insurance defense lawyers to see it nowhere. For the bank lawyers, deadbeats abounded.
      For me, the best area to have opposing counsel treat you like your client is in criminal defense cases. I've had assistant U.S. attorneys, spurred by their sense of virtue, spit contemptuous rejections at my suggestions for resolving cases. One even let loose a Freudian slip and told me that he could not do what I was asking because of what I had done - meaning the crimes alleged in the indictment.
      These lawyers have become their client, their cause. It is that identification that is so terrifying, because it involves the loss of self; not just professional self, but self generally.
      Consider, as an object lesson in the perils of identification, what famed litigator Gerry Spence wrote about his experience in trying cases for his clients. "It is I, always, not the client, on trial. I have seen many clients asleep while the jury is out and I pace the floor in misery. The jury accepts or rejects me, not my case. I make the case. I am the director, the producer, its principal actor - it is my courtroom, my judge, my jury - it is I, and when the jury says no, it is the ultimate rejection because they are not saying no to just an idea, but they are saying no to all of me since I have put all of me in the pit. It is the final rejection, like a mortally wounded animal must feel when the bullet rammed through its guts where the entry wound is small, just the size of a nice neat forty-five."
      Now, trial lawyers have been known to exaggerate a bit when they write of their lives. The genre of lawyer autobiography is really the genre of self-advertisement. So perhaps Spence's account is exaggerated. I suspect it isn't. And I suspect further that trial lawyers reading it experience the spark of recognition. This is the extreme of client identification, but, with the nature of ordinary lawyering providing the building blocks for it, it also becomes an inevitable result unless the lawyer stops, takes stock and determines that his professional identity is the one that matters most.
     
      William Domnarski is a sole practitioner in Los Angeles who works exclusively in federal court. He has written two books on the federal court system and its judges.