Mcle Article Threats, Extortion and Legitimate Advocacy
| Publication year | 2020 |
| Author | By Mark L. Tuft |
By Mark L. Tuft
Mark Tuft is a partner with Cooper, White & Cooper LLP in San Francisco specializing in legal malpractice law and is a co-author of the Rutter Group Practice Guide on Professional Responsibility. MTuft@cwclaw.com.
Recent cases highlight the need for litigators to clearly understand the difference between aggressive advocacy and conduct amounting to extortion and prohibited threats. Clients should be able to hire aggressive lawyers and expect them to pursue available means for achieving the clients' objectives. Litigators wishing to preserve their right to practice law, on the other hand, need to know the parameters of legitimate advocacy and cannot abide uncertainty when it comes to distinguishing aggressive tactics from impermissible threats and extortion.
What is meant by legitimate advocacy? The term is sometimes used in rules of professional conduct (see, e.g., ABA Model Rules Prof. Conduct, rule 8.4(g) [forbidding bias and harassment in law practice]). However, the rules do not contain a clear-cut definition, and legitimate advocacy is commonly viewed in the context of zealous advocacy.
Zealous advocacy is best understood as it has evolved in the law governing lawyers. The ABA articulated the duty of zealous advocacy in Canon 7 of the 1969 Model Code of Professional Responsibility as the duty of a lawyer, both to his client and to the legal system, to represent the client zealously within the bounds of the law. (See ABA Model Code Prof. Responsibility, EC 7-1.) The current ABA Model Rules use decidedly softer language in describing the required duty of advocacy: "A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf. A lawyer is not bound, however, to press for every advantage that might be realized for a client." (ABA Model Rules Prof. Conduct, rule 1.3 (Diligence), com. [1]; see also ABA Model Rules Prof. Conduct, Preamble ¶[9].)
"Within the bounds of the law" sets a clear constraint on legitimate advocacy. Zealousness does not require that lawyers function with a certain emotion or style of litigating. (Rest.3d, Law Governing Lawyers (ALI 2000) § 16, com. d.) Instead, the proscriptive maxim considers zealous advocacy and fidelity to the law to go hand in hand. "Lawyers who exercise their skill and knowledge so as to deprive others of their rights or to obstruct the legal system subvert the justifications of their calling. Unlawful acts include all those exposing a lawyer to civil or criminal liability, including procedural sanctions, or discipline for violation of professional rules." (Rest.3d, supra, § 23, com. c.)
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Neither California's current nor former rules refer to zealous advocacy. However, California case law and ethics opinions reflect the maxim that zealous advocacy is tempered by the law. (Hawk v. Superior Court (1974) 42 Cal.App.3d 108, 126; see, e.g., Cal. State Bar Formal Opn. 2019-198.) The "bounds of the law" include disciplinary rules and enforceable professional obligations. (Hawk, at p. 126, fn. 17.) Thus, it is...
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