The Challenge of Being a Truthful Advocate

• Publication year: 2003
• Pages: 19
• Citation: Vol. 32 No. 10 Pg. 19

32 Colo.Law. 19 Colorado Lawyer 2003.

2003, October, Pg. 19. The Challenge of Being a Truthful Advocate

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19

Vol. 32, No. 10, Pg. 19

The Colorado Lawyer
October 2003
Vol. 32, No. 10 [Page 19]

Ethics for Colorado Lawyers Special Issue

The Challenge of Being a Truthful Advocate
by John A. Jostad

John A. Jostad, Fort Collins, is the sole shareholder in Jostad Associates, P.C. - (970) 221-2248; jostad@jostad.com He is a long-time member of the CBA Ethics Committee and a past Chair of that Committee. He also is a member of the CBA Professional Reform Initiative Task Force. Jostad is a 1982 graduate of the University of Denver College of Law and 1997 graduate of the Iliff School of Theology

We all strive to be effective advocates for our clients regardless of our area of practice. If our client, desires to purchase real estate, our goal is to buy the property the client desires for the best price. In our negotiations, do we initially put forward the maximum amount our client is willing to pay? Is it dishonest if we "bluff" about how much the client will pay?

In civil litigation, as plaintiff's lawyers, we seek to recover the greatest amount for our clients and, as defense lawyers, we seek to pay out the least amount. In our negotiations, do we, as defense lawyers, begin the discussion with the maximum amount our client will pay the plaintiff? Is it dishonest if we state that the most our client will pay is a lower amount? And, if asked to submit confidential settlement statements to a settlement judge, what are our obligations to be candid and totally honest in those statements?

The goal of this article is to reflect on some of the debates regarding lawyer honesty and dishonesty and to inspect our roles in the adversary system. After years of litigation, one may begin to wonder if the system inherently forces attorneys to act dishonestly. However, with some individual sensitivity to that issue, the entire system may be improved as we go forward. Consider the following hypothetical:

Greta Greyhair represents a client who has been injured in an industrial accident. The defendant, a construction company, is defended by Sally Solo in a case pending before Judge Jane Justice. In preparation for a status conference, Greta and Sally are reviewing the case, and Greta asks Sally about the likelihood of settlement. Despite the fact that the construction company has repeatedly and privately directed Sally to settle the case before trial, Sally, for strategic reasons, states that there is "little or no chance that this case will settle and, in all likelihood, we will go to trial on the merits." At the status conference, Judge Justice also inquires about the status of settlement discussions. Sally, consistent with her discussion with Greta, tells the court that "my client really only wants to get this case to trial, Your Honor. No settlement prior to trial is likely."

Did Sally Solo lie to Greta regarding settlement? Did Sally make a fraudulent statement to the court that must be corrected? To what extent is our advocacy system built on false statements or, at a minimum, a tendency to be less than totally forthcoming? How do we view our own individual conduct as an attorney? Are we, individually, liars?

Advocate Versus Hypocrite

Black's Law Dictionary defines "advocate" as: "One who assists, defends, or pleads for another. One who renders legal advice and aid and pleads the cause of another before a court or a tribunal, a counselor. . . . An assistant; adviser; a pleader of causes."1

We all know from our training and practice in litigation that our efforts to plead our client's cause are more likely to be successful when asserted with our own passion. Indeed, we are directed to this goal by our own rules of conduct. In the Comment to Colorado Rules of Professional Conduct ("Colo.RPC" or "Colorado Rules") Rule 1.3, "Diligence," it is recognized that "a lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and may take whatever lawful and ethical measures are required to vindicate the client's cause or endeavor. A lawyer should act with commitment and dedication to the interests of the client and with zeal in advocacy on the client's behalf."

This all sounds so positive and ethical. But how do these goals impact lawyer trustworthiness and honesty? Let's consider another term, "hypocrisy": a feigning to be what one is not or to believe what one does not."2 In your law practice, are you a "hypocrite"? In many ways, the best advocate is...