The Myth of the Bulldog Attorney
Rule 1.3 of the Rules of Professional Conduct advises attorneys to “zealously” represent their clients, and most attorneys practicing ethically are mindful of the high bar set by that standard. But herein lies the crux of the confusion. For many people, many attorneys even, “zealous representation” brings to mind hard-nose prosecutors who are “tough on crime” and “won’t make deals with criminals,” or bulldog defense attorneys who will “take the case all the way to the top” and will “fight for their clients’ rights no matter what.” This approach to advocacy, while potentially useful at trial, is often antithetical to a meaningful negotiation. And it is important to remember that 1.3′s admonition is not to win at all costs, but to represent the client’s interests. If those interests can be achieved without the costs and uncertainties associated with a trial, then Rule 1.3 compels attorneys not to act as though they are standing before a jury, but to set aside personal feelings and approach the negotiation process with equal zeal.
Negotiating very often requires a conscious shift away from the types of offensive and defensive tactics that might drive a successful trial strategy. Finding common ground, eschewing drama, abandoning ego, and compromising are some hallmarks of successful negotiation that, in a courtroom setting, might lead to ineffective assistance of counsel claims. Conversely, it should be clear that approaching a negotiation in a dramatic, egoistic fashion with a fear of seeking common ground and an unwillingness to compromise is equally ineffective advocacy. So if, as happens in the vast majority of cases, a negotiated settlement is the desired outcome, then the bulldog defense attorney and the hard-nose prosecutor must be set aside unless and until they serve the client’s interests.
Unlike a bulldog attorney, the attorney to watch out for is the one who develops clear, concise, and well-reasoned arguments. They appreciate the value of reasonable settlement and have the confidence to negotiate without undue drama. They guide clients to safe harbors through the perils and emotional storms of litigation while bulldog attorneys tend to stir the seas of discontent and unnecessarily drive up attorney’s fees and emotional costs.