A Sporting Theory of Representation
© Professor Neil Hamilton
(published Feb. 21, 2011 in Minnesota Lawyer)
The Star Tribune ran a series of articles titled “Derailed” starting in December, 2010, about the judicial penalties imposed on Burlington Northern Sante Fe Corporation (BNSF). The newspaper quoted the BNSF general counsel saying that his client is “committed to the highest ethical principles at every turn, never compromising on safety, never compromising on ethics, never compromising our integrity.” With respect to the judicial penalties for litigation misconduct, the general counsel explained “Some of the greatest athletes in the world [are] competing at a high level and sometimes they get yellow-carded, ‘cause they’re competing so hard. Were they trying to be malicious? Were they trying to be hurt somebody? I don’t think so. When you get in this adversarial mode, I think both sides on occasion will get yellow-carded.”
I have heard a number of lawyers over the years similarly compare civil litigation to contact sports, especially American football. We could call this the “sporting theory of representation.” The analogy bears some careful thought and analysis when it is used to justify either conduct that has been disciplined as with the BNSF judicial penalties or conduct that is above the floor of the law of lawyering but does not pass a “smell” test and is far below our profession’s ideals and aspirations. In addition, some “sporting theory” lawyers argue that “zealous advocacy” essentially requires each lawyer to do everything that is permitted (or in some cases even arguably permitted) by the law of lawyering so that the client will win. Some lawyers argue also that this conduct is necessary for a lawyer’s professional effectiveness.
Are Judicial Penalties for Misconduct Analogous to Getting “Yellow-Carded”
We look first at whether a judicial penalty for misconduct is analogous to a “yellow card” just within its own terms as an analogy. A soccer referee holds up a yellow card as a caution given to a player for unsporting overly-aggressive fouls; a second yellow card given to a player results simultaneously in a red card where the player must leave the game and the player’s team must play short-handed without a substitution. In the English Premier League per soccer match, roughly 20% of the teams receive no yellow card, 25% of the teams receive one yellow card, 35% of the teams receive two yellow cards, and 20% of the teams receive three or more yellow cards.
A judicial penalty for misconduct is not a warning like a yellow card; it is a penalty imposed on serious intentional or reckless and willful misconduct. While I don’t have empirical data, my sense is that judicial penalties for misconduct are very uncommon.
Is the Civil Litigation Justice System Similar to Contact Sports?
Is our civil litigation justice system similar to the “greatest athletes in the world competing at a high level” in a contact sport? I have also heard other lawyers use American football analogies about inflicting pain on the opposing side in order to injure and intimidate them. Is this an appropriate analogy for our civil justice system, and the lawyer’s role in the system?
I struggle with the analogy comparing our civil justice system to contact sports. While I understand both that trial by combat (wager of battle) was introduced into England by the Normans after 1066 and that centuries ago contact sports were often simulations of and training for combat, trial by combat was seldom used and generally detested. From the twelfth century until the formal abolition of trial by combat in 1818, trial by jury and lawyers were intended to steer people away from physical harm to others to resolve conflict toward conflict resolution that respects the dignity of each person.
Contact sports are now a recreational activity or an entertainment. Any player has the option of leaving the game at any point. Our civil justice system is not a recreational activity or entertainment. It brings the power of the state to bear to resolve conflicts in a way that the parties and the public consider sufficiently fair that they accept the results without resort to violence.
The lawyer’s role in this civil justice system requires holding in proper tension the three roles outlined in the Preamble to the Rules of Professional Conduct. Each lawyer takes an oath to be “a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.” Maintaining proper tension among these three roles is far more demanding and complex, and far more important to the peaceful ordering of society than the role of an athlete seeking to win in a contact sport.
Does “Zealous Advocacy” Require A Lawyer To Do Everything That Is Permitted In Order For The Client To Win?
Does the analogy that great athletes play at the edge of the rules to win and thus civil litigation lawyers should do the same make sense? Some lawyers argue that a failure to do everything permitted by the Rules of Professional Conduct is a failure of competent zealous advocacy. The black-letter language of the 1969 Model Code’s Canon 7 that “A lawyer should represent a client zealously within the bounds of the law” does not appear in the 1983 Model Rules or the Minnesota Rules. The Model Rules did not explicitly include a duty of zeal in the text of any Rule because of a concern that “zealous,” rather than the dictionary definition of warmly engaged or ardent on behalf of someone, will slide off into “zealotry” or excessive zeal. The excessively zealous lawyer ignores the roles of the lawyer as an officer of the legal system and a public citizen having a special responsibility for the quality of justice. The lawyer’s financial gain from excessive zeal will foster a lawyer’s rationalization that such conduct is required.
Paragraph 2 of the Preamble to the Rules, in the context of the lawyer’s role as a representative of clients, states “As an advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.” Rule 1.3, comment 1, states “A lawyer must act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf. A lawyer is not bound, however, to press for every advantage that might be realized for a client. For example, a lawyer may have authority to exercise professional discretion in determining the means by which a matter should be pursued.” The Preamble’s Paragraphs 7 (“a lawyer is also guided by personal conscience and the approbation of professional peers”), 14 (noting that many rules using the term “may” are permissive and give the lawyer discretion to exercise professional judgment), and 16 (“The Rules do not … exhaust the moral and ethical considerations that should inform a lawyer …”) also indicate that “zealous advocacy” does not require a lawyer to do everything permitted by the Rules in order for the client to win.
Is It Necessary To “Push The Envelope” At The Edge Of The Law Of Lawyering In Order To Be Effective And Successful?
Some lawyers argue that pushing the envelope at the edge of the law of lawyering (and failing both the “smell” test and the ideals of the profession) is necessary in order to be effective and successful in the practice of law. While the empirical evidence is still at an early stage on this question, the evidence available points the opposite direction. The evidence shows a strong correlation between high professionalism (internalizing the ideals of the profession into personal conscience) and both clients’ and senior lawyers definition of effectiveness. My 2011 Georgetown J. of Legal Ethics article (with Verna Monson) lays out this evidence. See http://ssrn.com/abstract=1495824 In addition, last summer, we interviewed twelve Minnesota lawyers who have won a professionalism award. All twelve exemplary lawyers (each successful in his or her area of practice) agreed that the foundation of their practice is an internalized moral compass incorporating a deep sense of responsibility to others including clients, the profession, and society. Eleven also emphasized the importance of being trustworthy and honest in relations with others including clients, colleagues, the court and adversaries.