Vol. 75, No. 12, December 2002

Letters

Bar's branding effort boosts public's and lawyers' perceptions

Congratulations on the most excellent job on the work you have begun to "brand the profession." Please pass my kudos on to the members of the committee involved in leading the project. Not only is there a crisis when it comes to the public's perception of lawyers, but lawyers lose the idealism they had of righting wrongs when they chose to become a lawyer. For some of us, that choice was made as a snot-nosed kid growing up in rural Wisconsin.

I practiced for 17 years in La Crosse before closing my law office to create a virtual law community where lay people could learn about the law; how to find good, caring lawyers, and not the hucksters on TV; and to interact with each other and lawyers. The goal was to empower people and improve the image of lawyers.

Now that my company has been sold to Martindale-Hubbell, I am working on a new tech project with similar goals. I also intend to instill some pride in the young lawyers who may have lost it since law school. The information you put together as the basis of the Bar's branding effort has helped in my marketing research. Thanks for that.

Continue the great work. The State Bar of Wisconsin is one of the nation's leaders when it comes to bar association Web sites.

Kevin O'Keefe
Bainbridge Island, Wash.

Zealous advocacy hurts our profession

I read with interest Dean Dietrich's article "Drawing the Line on Discovery Abuse" in the November issue. All of Attorney Dietrich's articles are helpful and informative and serve to keep ethical issues at the forefront of our day-to-day practices. I want to commend him for the articles and commend the Wisconsin Lawyer for providing the forum for this important discussion. However, there were several comments in that most recent article that merit debate and discussion.

The article's basic premise is that the line between zealous representation and unethical behavior is a fuzzy one. That opening premise gives undue and unwarranted credence to zealous representation. The word zealous is an unfortunate one. Webster defines zeal as "enthusiastic, diligent devotion in pursuit of a cause, ideal, or goal." That seems appropriate. We need to be enthusiastic and diligent in our representation. Unfortunately, some lawyers confuse zealous activity with the activity of a zealot, who is one with an excessive, religious fanaticism. It is not our role to be zealots.

There is no requirement of zealousness to be found in SCR 20, the Rules of Professional Conduct. In the context of litigation, we have the obligation to provide competent representation (SCR 20:1.1); to be diligent (SCR 20:1.3); to communicate effectively (SCR 20:1.4); to charge reasonable fees (SCR 20:1.5); to preserve client confidences (SCR 20:1.6); and to avoid conflicts of interest (SCR 20:1.7, 1.8, 1.9). The word zealous is not to be found in any of these rules or in the official comments to the rules. The word zealous is used once in SCR 20 and that is in the Preamble. The context of the word is important:

"A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.

"As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client's legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealing with others..."

This portion of the preamble is a description of the roles of a lawyer, not a directive or a license. We "zealously assert the client's position." We guide our clients through the thicket of legal process and procedure and we speak for them. Our clients deserve an articulate, thoughtful and forceful assertion of their case. They do not have the right to be represented by a zealot.

There is nothing in the rules or in the logic of the system that requires or even permits abusive tactics. In fact, there are many rules that specifically prohibit the tactics that some justify as zealous advocacy. We must assert only meritorious claims and contentions (SCR 20:3.1). We are obligated to expedite litigation (SCR 20:3.2). We must be candid to the tribunal (SCR 20:3.3). We must be fair to opposing parties and their counsel (SCR 20:3.4). We must respect the rights of third persons (SCR 20:4.4). And, we must supervise our associates and staff to see that they also follow the rules (SCR 20:5.1, 5.3).

In the Attorney's Oath (SCR 40.15) we affirm that we will not counsel or maintain any suit or proceeding that shall appear to be unjust or any defense unless honestly debatable under the law of the land. We further pledge that we will only use such means as are consistent with truth and honor and will never seek to mislead a judge or jury. Then we pledge to abstain from all offensive personality.

In this ethical scheme, where do we find support for the idea that we can obstruct discovery, use offensive personality tactics, engage in a war of attrition, or shade the truth?

Attorney Dietrich said that when there is an ethical issue raised by guerilla tactics, "The question will always be whether the conduct that occurred was, in some manner, advancing the client's interests. If so, it is not likely that the conduct will be considered a violation of the Supreme Court Rules." That sounds like the end justifies the means. The destruction of smoking gun evidence, sponsoring perjury, and all manner of illegal conduct could find a home under that umbrella. I know that is not what Attorney Dietrich meant by his comment, but my point is that any reasoning that the end justifies the means has no place in our ethics rules.

For too long we have used a nonexistent duty of zealous advocacy to excuse unethical and unprofessional conduct. That is not necessary, it is not ethical, and it is not professional.

Gary L. Bakke
New Richmond

Mr. Bakke's comments again underscore the debate over the conduct of lawyers and compliance with Wisconsin Supreme Court Rule Chapter 20.

The concept of "zealous representation" can be interpreted many ways and I concur with Mr. Bakke that the end result of representation of a client should not allow lawyers' use of inappropriate tactics or unprofessional behavior to go unchecked. Because this is such a difficult area, I believe the oversight of lawyer conduct will be more a matter of lawyers setting examples or refusing to reward inappropriate behavior rather than enforcement through the Office of Lawyer Regulation.

Dean Dietrich
Wausau

Author says, 'Keep up the great work'

Thank you for doing such a great job (once again) to showcase my November article, "Wisconsin's 'Stream of Commerce' Theory of Personal Jurisdiction." As a former high school newspaper editor-in-chief, I am well acquainted with the challenges of layout, graphics/photographs, publishing deadlines, and so on, and the Wisconsin Lawyer staff does such a great job on all of these fronts. We as a Bar are truly fortunate to have such capable people at the helm of our magazine. Again, many thanks, and keep up the great work!

Daniel J. La Fave
Milwaukee

Thank you. We believe that the primary reason members consistently rank the WL among the top three member benefits is the consistently high quality of articles contributed by members like you and the active involvement of our editorial review board. The WL could not be what it is without the volunteer contributions of State Bar members. The WL staff try to make the publishing experience as pain-free as possible, and invite members to contact us with their manuscripts and ideas for articles. Writing guidelines are at www.wisbar.org, or email the editors.

Wisconsin Lawyer