November 10, 2008

Used with permission from The Hennepin Lawyer, membership publication of the Hennepin County Bar Association

Minnesota’s Professionalism Aspirations — non-binding guidelines that were adopted by the Minnesota Supreme Court in 2001 — challenge attorneys to protect their clients’ legitimate rights, claims and objectives while acting professionally in all circumstances and treating opposing counsel with unfailing courtesy. For litigators, this can be a daunting challenge. In the midst of a contentious case, an attorney will often perceive that the interests of a particular client simply cannot be achieved if the opponent is indulged. The question, then, is how to handle sticky situations as an effective advocate, without sacrificing one’s professionalism.

While litigators have many sources of guidance on professionalism issues — including the  Minnesota Rules of Professional Conduct, the Minnesota Rules of Civil Procedure, and case law — the Professionalism Aspirations are an often overlooked tool. But the aspirations, like most statements on professionalism, sometimes leave unanswered questions or create new ones. This article discusses several common litigation situations in which tension often arises between potential client objectives and professionalism, and suggests strategies for managing these situations in light of the Professionalism Aspirations.

Clear resolutions do not exist for every situation in which professionalism and advocacy appear to be in conflict. In the end, litigators must be guided by their own judgment and common sense, as well as the professional rules and aspirations.

Scheduling Issues

A. Will Granting an Extension of Time Prejudice Your Client?
In litigation, opposing counsel often seek stipulations to extend the scheduling order. Such requests, as well as the pros and cons of stipulating, should be discussed with the client. If there is little or no potential prejudice to the client, as a professional courtesy, these extensions should ordinarily be granted absent unusual circumstances. But at times, a litigator harbors legitimate concerns that an extension will disadvantage his client. Perhaps one side appears better prepared for the next phase of the case than the other because of its greater diligence. Should that hard-earned advantage be sacrificed in the interests of professional courtesy? Or maybe an extension would allow the opposing party to calendar a motion that would otherwise be difficult to schedule without the extension. Should a litigator expose his client to greater legal fees in defending such motions, just to make opposing counsel’s life easier?

The Professionalism Aspirations address these finicky issues, but do not resolve them. Section III.C.3 of the Professionalism Aspirations states that attorneys will “agree to reasonable requests for extensions of time … provided legitimate objectives of our client will not be adversely affected.”  This begs at least three questions: What is “reasonable,” what is a “legitimate objective,” and when has that objective been “adversely affected”? Moreover, Section III.C.4 and Section II.B.3 of the Professionalism Aspirations may represent a conflict with Section III.C.3. Section III.C.4 states that “we will not request an extension of time solely for the purpose of unjustified delay or to obtain a tactical advantage.” Similarly, II.B.3 states that “we will not employ tactics … to delay resolution … or drain the financial resources of the parties.” A litigator must walk a thin line if she aspires to “agree to reasonable requests for extensions of time” from her opponent, while at the same time resisting an opponent who may be engaging in delay — whether justified or not — for the purpose of gaining a tactical advantage.

A litigator who suspects that an opponent may be requesting an extension of time for tactical reasons has many different options, depending on the circumstances of the case. But in most situations, we think the attorney should ask himself several questions. First, what is the degree of potential prejudice? More often than not, granting an extension is more of an annoyance or inconvenience than a genuine litigation disadvantage. Generally, absent prejudice to the client, a litigator should show cooperation rather than obstinacy, shrug off such inconveniences and permit the extension while concentrating on developing the merits of a client’s case. Second, a litigator may consider whether a motion to extend would be granted by the court. Under Minnesota Rule of Civil Procedure 16.02, a schedule can be modified “by leave of court upon a showing of good cause.” Where it appears unlikely that a motion to extend can be successfully opposed under the “good cause” standard, there will generally be little reason to spend a client’s money or risk alienating the court by opposing the motion, regardless of the underlying reason for the extension request.

Third, in many cases it is appropriate for a litigator to consider whether she may want or need a similar professional courtesy later in the case. An opponent who has been spurned is less likely to be generous in the future than one who has been accommodated.

Finally, it can be appropriate for a litigator to also consider the professional reputation of opposing counsel, and his past conduct within the case. If the lawyer is well known for delay and ambush tactics, or has repeatedly been unprepared throughout a case, his request for an extension should be analyzed with an especially critical eye.

B. The Big Firm Versus The Small Firm
When dealing with a litigation calendar, the size of competing law firms sometimes becomes an issue. For example, larger firms may be accused of overwhelming smaller opponents’ resources by producing reams of documents or scheduling excessive depositions and motions. On the other hand, a smaller firm will sometimes balk when a large firm lawyer opposes a proposed deposition or court date due to some other commitment. The smaller firm attorney may argue that opposing counsel’s firm has a team of lawyers who should be ready to fill in for their busy colleague. In our view, both of these tactics run counter to the Professionalism Aspirations. Section III.A.C.2 states that attorneys will “endeavor in good faith to honor previously scheduled trial or hearing settings, vacations, seminars, meetings or other functions that produce good faith calendar conflicts on the part of opposing counsel.” This aspiration presumably should guide firms of all sizes. “Big firm” opposing counsel are not an exception. Indeed, we all should be mindful that in many situations, lawyers are not interchangeable; a lawyer who is intimately familiar with a case often cannot be adequately replaced by one of her colleagues. And even if another attorney at the same firm could get up to speed on the case, the cost to the client may be significant.

Likewise, Professionalism Aspiration III.D.2 states that attorneys will “refrain from excessive and/or abusive discovery” and III.D.5 states that depositions will only be taken “when actually needed to ascertain facts or information or to perpetuate testimony,” and will not be scheduled merely “to increase litigation expenses.” Thus, it seems to us that purposely overwhelming any attorney solely to gain a litigation advantage is inconsistent with the Professionalism Aspirations.

On the other hand, there are certainly cases where large document productions or the scheduling of multiple depositions is appropriate. Some cases are document intensive, and some involve a host of vital witnesses. For this reason, the scope of discovery is often carefully planned as part of the parties’ initial joint case planning and court oversight. Tailoring case planning to the individual case often avoids unnecessary overload and ensures adequate resources are devoted.

Discovery
The discovery process is riddled with tension between effective advocacy and professional courtesy. In an effort to aggressively protect the client, at times discovery can degenerate into nasty disputes that may be unpleasant, as well as time-consuming and expensive for the client. Such battles can degrade the concept of civility or professionalism in the legal profession.

A. Reasonable Written Discovery
One common but tricky situation involves responding to written discovery requests.  Professionalism Aspiration III.D.3 states that lawyers “will comply with all reasonable discovery requests. We will not resist discovery requests that are not objectionable.” Examining this idea further, aspiration III.D.8 states that attorneys will “respond to interrogatories reasonably and will not strain to interpret them in an artificially restrictive manner to avoid disclosure of relevant and non-privileged information.”
The double-negative wording of aspiration III.D.3 (“We will not resist discovery requests that are not objectionable”) appears to acknowledge that, conversely, litigators may resist discovery requests that are objectionable. Consequently, we conclude that it is appropriate to make a simple but specific objection to a request that is wholly inappropriate or unclear. But what are reasonable requests? And what about requests that have an obvious purpose but are not drafted clearly, not carefully limited to the scope of the case, or possibly touch on privileged or work product material?

In our view — and we believe most litigators would agree — protecting privilege is paramount. Moreover, no litigator wants to facilitate an opponent’s fishing expedition. Nevertheless, if a request is legitimate, the Aspirations apparently call upon litigators to respond in a reasonable manner. One response method is to state the objection, reserve all rights in light of the objection, and specify a limited response that still answers the question in a reasonable manner. For example, if the discovery request seeks documents related to a particular business subject, but does not limit the time period of the request, one might respond: “plaintiffs object to this request as overbroad to the extent it does not specify a time period. Subject to and without waiving this objection, plaintiffs supply the requested documents from the years X to Y.”

The language of Professionalism Aspiration III.D.8 seems to imply a test to suggest whether the limited response satisfies professional aspirational goals. If, despite the objection, the responding party is supplying a full range of responsive, relevant, and nonprivileged documents, opposing counsel is likely to get at some point — regardless of the specificity of an individual discovery request — the response is likely reasonably complete.

Providing a reasonable response (rather than no response) has advantages outside of the professionalism guidelines. Needless discovery disputes are less likely to result from reasonable (albeit limited) discovery responses. Moreover, a litigator taking the more reasonable position is more likely to prevail in discovery-related motion, and to preserve his credibility, including with the court, in the process. Conversely, we have found that drafting discovery requests carefully makes it easier to overcome objections. It is therefore a good idea to define relevant terms, identify the time frame applicable to discovery requests, and, where applicable, specify that the request is seeking nonprivileged documents or communications.

B. Reasonable Scope of Depositions
Similar issues arise in depositions. Professionalism Aspiration III.D.6 states: “During depositions we will ask only those questions we reasonably believe are necessary for the prosecution or defense of an action.” But even understanding that some boundaries are clear, necessary is a significant hurdle; some questions may not be strictly necessary to the case, but certainly could be helpful. In addition, it isn’t always possible to ascertain the necessity of a question in advance. Even the most experienced attorney may be unable to predict whether a given question will go nowhere — or whether it will touch an unexpected nerve or prompt a new, fruitful line of questions. This, of course, is the point of discovery.

We have found that most of the time, good preparation helps an attorney identify the outer boundaries: truly necessary questions at one end, and questions designed to harass at the other. An attorney who knows the issues in the case well may be able to further narrow the scope of questioning. Paying careful attention to the deponent’s answers, including demeanor and nonverbal reactions to a question, may also help a litigator determine when to continue with particular questions and when there is little to gain.

That said, in our view, even the best preparation cannot completely dissolve uncertainty about what is a necessary question. Ultimately issues about individual questions, like other “difficult issues of professional discretion, ... must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the rules.” Minn. R. Prof. C., Preamble [9]. In other words, common sense and good judgment must ultimately guide deposition planning in each case.

Finally, we conclude that the aspirations’ caution to stick to necessary questions cannot be reasonably read as a prohibition against exploration. A bit of probing is, and should be, a part of the deposition process in most cases. Generally, there is only one opportunity to ask a question or follow a lead. Consequently, if there is doubt as to whether a rational question is absolutely necessary or simply carries potential, an advocate probably should not feel constrained to withhold the question.

Negotiation
Professionalism Aspiration III provides that an attorney owes “courtesy, candor, [and] cooperation” to opposing counsel. But as in discovery, being overly accommodating
in negotiations may hurt the client’s position, while being discourteous and unprofessional may put the attorney’s credibility and reputation at risk.

While the tension between potential strategic advantage and courtesy toward opposing counsel may never disappear, several strategies may mitigate this conflict.  First, the decision about whether to disclose a weakness, strength or bargaining position may be easier if the litigator considers whether her position is already apparent to, or likely to be known by, opposing counsel. Disclosure in these situations clarifies which issues truly are in dispute, and which are not. In our view, disclosure or stipulation is also consistent with Professionalism Aspiration III.G.2: “We will readily stipulate to undisputed facts [or perhaps legal issues] in order to avoid needless costs or inconvenience for any party.”

Second, in our experience, it is generally best to avoid making a proposal or responding to one off the top of one’s head. Generally, there is no requirement for an attorney to give an immediate reaction to a proposal. Spontaneous comments may say too much about the client’s view of the law or facts — or may commit the client to something that won’t appear to be such a good idea in retrospect. In our view, it is best to take a reasonable amount of time — minutes in some situations, days in others — to think things over.

Based on our experience, it is an important corollary, particularly for younger lawyers, for the attorney to know the limitations of his authority and understand which decisions should not be made without consulting the team — including, of course, the client. Fortunately, the need to confer with another attorney or the client also enables individual consideration of the proposal. A simple, honest response, such as, “I need to take your proposal back to my client” [or our team], may be in order.  In our view, letting opposing counsel know when to expect a response both maintains credibility and avoids creating unnecessary delays.

There is one simple — and possibly simplistic — rule about candor in negotiations: Don’t lie. Whether stating a position, reiterating or memorializing an agreement, or representing a fact, tell the truth. Most attorneys would never consider outright dishonesty, but in our view it is also important to examine what has been said in the heat of negotiations: Were statements accurate? Were opinions clearly portrayed as opinions versus statements of fact?

Finally, we also believe that candor requires attorneys to accurately memorialize the terms of any agreement that is reached. It is often best to repeat the terms at the end of a discussion, if the discussion occurred orally, and then follow up with written confirmation. In doing so, the credible litigator will memorialize all aspects of the parties’ proposal or agreement — not just those favorable to his client. Accurate representation of parties’ communications is about more than living up to professional rules or aspirations, it is about preserving long-term credibility of both lawyer and client.

Conclusion
Minnesota’s Professionalism Aspirations promote a laudable goal: professionalism in all circumstances, while not sacrificing client interests. But as with most worthwhile aspirations, achieving this goal is easier said than done. In day-to-day litigation, it is often hard to discern that point where pursuing a client’s perceived interests blurs into unprofessional behavior. Reviewing the Professionalism Aspirations and rules of conduct — while consulting one’s own best judgment and good sense — will help litigators navigate troublesome situations.