The Ethical Utah Lawyer: What Are the Limits in Negotiation?

• Jurisdiction: Utah,United States
• Citation: Vol. 21 No. 2 Pg. 23
• Pages: 23
• Publication year: 2008

Utah Bar Journal Volume 21.

Vol. 21, No. 2, 23. The Ethical Utah Lawyer: What Are the Limits in Negotiation?

Utah Bar Journal

Vol. 21, No. 2
March/April 2008

The Ethical Utah Lawyer: What Are the Limits in Negotiation?

The Ethical Utah Lawyer: What Are the Limits in Negotiation?

by Michael H. Rubin

Editor's Note: Mr. Rubin was the keynote speaker at the Utah State Bar's 2007 Annual Convention. His engaging presentation included a turn at the "baby grand," which unfortunately cannot be replicated here. This article otherwise draws heavily on his remarks in Sun Valley as well as on his prior publications.1

The Lawyer as a "Zealous Advocate"

For over two hundred years, lawyers have been encouraged to be "zealous advocates" of their clients' interests

While being a "zealous advocate" was a requirement of the Canons of Professional Ethics, that concept is no longer mandated. Variations of the phrase "zealous advocate" are currently relegated to mere aspirational statements in the Preamble to both the ABA Model Rules and the Utah Rules of Professional Conduct. In fact "zealous advocacy" has not been a requirement of national lawyers' codes since 1983; yet, this has not stopped lawyers from using the phrase or courts from extolling it. At least five Utah cases since 1988 have used the phrase "zealous advocate" or "zealous advocacy" - one civil case and four criminal matters State v. Clark, 2005 UT 75, 124 P. 3d 235; State v. Harmon, 956 P.2d 262, 276 (Utah 1998); State v. Price, 909 P.2d 256, 259 (Utah 1995); State v. Holland, 876 P.2d 357 (Utah 1994); Error v. Western Home Ins. Co., 762 P.2d 1077, 1083 (Utah 1988) (concurring opinion).

Some believe that zealous advocacy has become too "zealous" and has resulted in an ill-mannered, overbearing, and unpleasant style of advocacy. The American Law Institute's Restatement of the Law Governing Lawyers warns that zealous advocacy is not a synonym for hardball tactics in litigating or negotiating.

Underlying the concept of a zealous advocate is the ideal of a lawyer who asserts the client's position to the extent permissible by the law, even if the client's views and goals do not coincide with the lawyer's personal, political, or social views. Some say that even the zealous advocate who is polite and courteous while protecting the client is merely a "neutral partisan" - a fighter who engages in a legal battle to protect the client regardless of the underlying moral principles that might otherwise influence the outcome. Others say that such roles allow lawyers to be "amoral technicians" - those who use the system for the client's benefit without concern for whether the client's moral views and the lawyer's moral views are aligned.

But isn't this too harsh a view of most lawyers? Aren't most lawyers merely trying to achieve worthwhile goals for their clients? Of course they are. This does not mean, however, that the pursuit of a client's interests frees a lawyer from moral tensions.

The tension that most lawyers face is not balancing their personal view of morality and justice with their clients' goals; rather, the tension is between protecting client confidences and revealing the "truth."

The Tension Between Client Confidences and the "Truth"

Client confidences are...