By Steve Berenson
How many of you have heard something from opposing counsel along the following lines?
“If it were just up to me, I would go ahead and grant you the extension. But my client won’t go for it. He simply hates your client and has instructed me not to grant any extensions of any kind.”
Is this a valid response to a request for a discovery extension or the like? I say no.
With the enactment of the current California Rules of Professional Conduct, California adopted ABA Model Rule of Professional Conduct 1.2, which states, in pertinent part:
“a lawyer shall abide by a client’s decisions concerning the objectives of representation and … shall reasonably consult with the client as to the means by which they are to be pursued.”
This standard is frequently simplified to: the client gets to decides the objectives of the representation and the lawyer gets to decide the means to achieve those objectives. Easy enough, but the means/objectives distinction frequently breaks down at the margins. For example, suppose you are representing the adult child of an elderly testator who has recently passed away. The testator’s most recent will disinherits the child, but the child is adamant that her mother lacked testamentary capacity when she executed the most recent will and wishes to launch a will contest. However, the child instructs the lawyer that whatever the lawyer does, the lawyer is not to call the client’s elderly father to testify regarding the mother’s testamentary capacity. The child is adamant that such testimony would be too hard on her father, and she is willing to accept whatever the consequences are to the lawsuit in order to avoid putting her father through the ordeal of testifying.
Now typically, the decision whether or not to call a particular witness to testify is considered a tactical decision, or a “means” decision rather than an “objectives” decision, and therefore, falls solely within the province of the lawyer to decide. See, e.g., People v. Lang (1989) 49 Cal.3d 991, 1031 (lawyer’s decision not to call defendant’s grandmother to testify at penalty phase of capital trial was within lawyer’s discretion) (citing Model Rule 1.2, comment); Esguerra v. State, 2005 Alas.App. LEXIS 2, at *31 (Mannheimer, J. concurring) (choice of witnesses belongs to attorney under Rule 1.2(a)). However, do any of us believe that it would be appropriate for the attorney to call the client’s elderly father to the stand against the client’s express wishes in our hypothetical case above?
Nonetheless, most decisions whether to grant routine discovery extensions or other courtesies during the course of litigation rarely fall close to the “margin” between means and objectives. Rarely will a couple of weeks extension on a discovery deadline be “outcome determinative” in a case, and therefore might be considered an objective rather than a means. Therefore, the decision whether to agree to such an extension falls squarely within the province of a lawyer.
Now I do not mean to suggest that a request for an extension will never stray into that middle ground between means and objectives. A request to delay a deposition beyond the discovery cut off might well end up being “outcome determinative” if that witness’s testimony is necessary to oppose a motion for summary judgment. Or, agreement to allow amendment of a pleading to occur before expiration of a statute of limitations might mean the difference between life and death of a cause of action. In such circumstances, it might be the case that such decisions should be considered to impact upon the objectives of the representation, and therefore must be determined by the client. And of course, Rule 1.2(a)’s requirement that a lawyer consult with the client, even with regard to “means” decisions, should be honored to the letter.
However, deferring to client instructions to “grant no courtesies” or to “give no quarter” to the opposing party or counsel need not be heeded to the extent that they relate to granting routine courtesies that are unlikely to be outcome determinative or to prejudice the client’s substantive interests in the litigation in any way. In a related context, plaintiff manufacturer of automobile trailers sued its former attorney for legal malpractice for the latter’s failure to engage in certain “sharp” litigation tactics in defending a personal injury case, where the case for liability of the manufacturer was overwhelming. Transcraft Inc. v. Galvin, Stalmack, Kirschner & Clark (7th Cir. 1994) 39 F.3d 812. In reviewing a jury finding of malpractice, the controversial, but at times eloquent Judge Richard Posner stated:
“Refusal to violate professional ethics — or even to approach as near to the line as humanly possible — is not professional misconduct. [Citation.] A scrupulous lawyer, a lawyer who takes Law Day rhetoric seriously, who sincerely believes that he has a dual duty, to his client and to the law, and acts on his belief, may lose some clients to his less scrupulous competitors but he should not be deemed to be courting a tort judgment.”
Id. at 817.
So, next time a colleague asks you for a courtesy extension of some deadline, remember, the decision is most likely yours, not your client’s, and your client should not serve as a convenient excuse for failure to do the right thing.
19191861.2
This is a helpful reminder of some of the guidelines floating in a difficult pond. Stories of huge sanctions in civil litigation often involve intentional bullying, either following an improper direction of a client or catering to client attitudes. Some lawyers attract those clients by marketing that promises nastiness. I urge that this is a subject worthy of serious study and publication by the ethics committee. Among other issues, I am suspicious whether “outcome determinative” divides safe from snaky parts of the pond, and I think lawyers need guidance in plain English.
In the early years of this century, I served as one of Luce Forward’s two GCs. I did a down-to-foundation review and rewrite of the firm’s engagement agreement. I added a paragraph explaining the means/objectives distinction and the lawyer’s duty in litigation to employ the means called for by applicable rules and codes of conduct. I illustrated with agreeing to extensions that did not threaten the client’s litigation objectives. My partners accepted the provision in principle, but sometimes struck it when clients objected. I learned that even in a collegial partnership with many shared values, lawyers have a wide range of viewpoints about the power of clients to control the attitude of litigation through purse strings and the right to change lawyers.
Most client demands for bullying lack a ground to overcome the lawyer’s duty as an officer of the court to control the means of litigation and follow both rules and norms of professional conduct. The problem is lack of either social or official enforcement.
When I started practicing here in 1974, a few litigators were known for dishonest or nasty practice. Gossip about them circulated freely. They were shunned, not quite in the mode of Quakers, but they received neither referrals nor support for professional offices or recognition. The law and motion judges knew who they were and punished discourtesy with discretionary case management rulings that turned the tables on them. These things minimized sharp practice and curbed proliferation.
Moreover, clients lacked the power they wield today. A client with major San Diego litigation needed a San Diego lawyer, which meant that the means of litigation usually followed local custom and practice. All this changed around the time that “Rambo-style litigation” became a national meme.
Tamping down litigation bullying requires more than tightening the vise on lawyers. Ethical lawyers are clamped between raw client power over them and rules, norms, and their own moral values. Courts must make bully clients hurt. And that requires dealing with many thorny issues. Not the least is whether a client’s objectives legitimately may include damaging an opposing party by courteously, rule-obediently, with reasonable choices of motions and discovery, and implacably pushing to judgment a meritorious case that everybody “knows” should settle.