Ethics Month Bonus Scenario A

To object or not? Whose case is it anyway?

Ryan Martin was second chairing a bench trial with a junior partner in a contentious divorce. During a cross-examination of a witness (who was not critical to the case), opposing counsel made an objection that the judge sustained in a rather offhanded way. Ryan felt that the judge was clearly wrong on the ruling. And, even though he knew that the point was something the client considered important, Ryan knew that the point did not really matter one way or the other to the outcome of the case. Ryan chose not to press the point because he did not want to antagonize the judge. At the end of the day, the judge ruled against Ryan’s client for completely unrelated reasons. Afterwards, Ryan’s client chased down the junior partner in the hallway of the courtroom and screamed at her for allowing a “wimp” to work on his case who was more interested in “sucking up to the judge” than in defending his case.

—Based upon the program "Professionalism and Clients: Zealous Representation, Reasonably Diligent or Overly Meek?" by the I'Anson Hoffman American Inn of Court in Norfolk/Williamsburg, VA

Send us your comments or your own ethical dilemmas by email or Tweet them to @innsofcourt using the hashtag #AICethicsmonth.

Comments: 

Hon. Barbara M.G. Lynn, Patrick E. Higginbotham and Honorable Barbara M.G. Lynn American Inns of Court, and Michael P. Lynn, Esq., Patrick E. Higginbotham American Inn of Court, Dallas, TX

This is not a matter of ethics. Ryan made a strategic judgment not to alienate the court over an insignificant matter. That is what lawyers must do. Hopefully, the junior partner will support Ryan's decision and defend him against the client's insults. If he doesn't, Ryan should look for a new job.

The Ethics Gurus (Francis G. X. Pileggi, Esq. of Wilmington, DE and John P. Ratnaswamy, Esq. of Chicago, IL)

This sounds more like a client relations issue, and not an ethics issue. It could be a communications issue, but it sounds like it emerged in a manner that was not anticipated. Obviously, it resonates with Scenarios above about the respective roles of lawyer and client as to tactics. Trial tactics, such as when to object or challenge an objection, should be left to counsel; convincing the client of that is not always easy, however!

Mary Beth L. Sweeney, Esq., Massachusetts Family and Probate American Inn of Court, Boston, MA

It is always a lawyer’s job to know how far to press an issue. Ryan could have challenged the ruling on the objection by calmly telling the Judge “Respectfully your Honor, and for the purposes of the record, I disagree with your ruling” and then provided the basis and asked the Court to reconsider. If the Court’s response is still “No” then calmly sit down. Your client will know you tried and this might have avoided the ultimate problem with the client. The junior partner should tell the client “I am sorry that you feel that way, but Ryan is a fine and skilled attorney. If you are not happy with the decision we can discuss an appeal.”

Judge William H. Burgess III, Barney Masterson American Inn of Court, Clearwater, FL

Screaming is never a good way to start a serious conversation. The junior partner should stand her ground and calmly explain to the client that while she shares the client’s disappointment in the outcome, the second chair is a professional who has her full confidence; that the case was decided against the client for reasons having nothing to do with whether the second chair did or did not voice an objection; and that if counsel had antagonized the judge it would not have helped the client’s cause and might have even hurt it. She should end the conversation by inviting the client to come in for an office appointment to go over the record of the case if the client has any specific questions about the way the trial was handled. I would advise Ryan to maintain a professional demeanor at all times when dealing with angry clients, and suggest that he should have explained to the client after the trial why he did not make that certain objection.

Stephanie J. Zane, Esq., Thomas S. Forkin Family Law American Inn of Court

Not an ethical issue but it could amount to a malpractice claim—which will not likely be successful. The junior partner should calmly address the client with Ryan present. Ryan should be allowed to express the reasons for the tactical decisions made. Ryan should be told that knowing the audience is more than ½ of the battle in a bench trial but that the record must be protected.  

Donald E. Campbell, J.D., Ph.D., Associate Professor of Law, Mississippi College School of Law, Jackson, MS

The decision whether to object in this context would appropriately be left to the attorney.  Rule 1.2(a) and Comment [2].  Therefore, not pressing the objection would not be unethical conduct.  One thing that the lawyer should be sure to do, however, is to communicate with the client afterward about why he took the step of not challenging the objection.  This is required by Rule 1.4.

Inn member in Pittsburgh, PA 

The issue here is client education/communication. Ryan should have explained to his client in advance that the issue wasn't relevant/important. Ryan should also have prepared his client by telling him that in trial, things don't always go your way and adverse rulings happen. This prevents clients from having unrealistic expectations. The junior partner should also have explained these things to the client and counseled Ryan as to appropriate client communication.