My conscience as a lawyer sometimes is troubled when a client wants me to make an effort I consider pointless. It is not a question of being asked to do something illegal or immoral in itself; indeed, if the effort could succeed, the outcome generally would be entirely just. But knowing from precedents and/or experience that what a client wants to attempt is bound to fail, I am forced to choose between trying to do the impossible and refusing to comply—a refusal that might lead him or her to retain someone else, perhaps at considerable loss to me if the client is an important and continuing one.
For example, one of my most important clients, the owner of a manufacturing company here, has been the target of a campaign by the local newspaper. The editor is an environmental zealot. The factory is not an advertiser. The paper has been pressing my client to go well beyond what laws and regulations require in limiting the environmental impact of his operation. My client persuaded his employees and their union to take his side, and since the factory is a major employer, the campaign seemed to be going nowhere. But then the paper launched a series of editorials attacking my client’s “character” by focusing on every embarrassing and questionable thing he has said and done since he was in kindergarten. While careful to avoid statements that would constitute libel according to settled law, the editor’s tactic is contemptible and unfair, and my client wants to sue. Considering the facts of his case and the decisions in precedent cases that constitute the law of libel, I am convinced he will not win and have told him that. However, he wants his day in court so that, as he says, he can “put my side on the public record.” I agree with him that the law should be on his side and can make the case that the court should develop the law in favor of my client. But I am as sure he will not prevail as one ever can be when it comes to what judges will do.
Another example. A client is being sued by his wife for divorce and custody of the children, three girls ranging in age from thirteen to six. The children now live with their mother. My client is willing to concede the divorce but wants to contest custody. I know this couple; they have been members of our parish for years. The woman took a feminist turn, declared herself a lesbian, and left the Church. My client is a fine father, a decent and hardworking man who remains a devout Catholic. There is no doubt in my mind that he should have custody of the girls. But, given the judge’s preference for the mother in custody disputes and the precedent of a recent decision on homosexual parenting by our state court of appeals, there is equally no doubt that the wife will prevail. I estimate that attempting to get custody will cost at least ten thousand dollars, and I have told him I do not think we can win. But he feels he must try to protect the girls from their mother and give them a wholesome and Catholic upbringing.
This question calls for the derivation of norms. While serving clients, lawyers should make decisions, insofar as their other moral responsibilities permit, solely on the basis of each client’s true and legitimate interests. It is usually wasteful, and so wrong, to press any civil case with no reasonable hope of success. Still, if these clients remain determined to attempt the impossible, they will obtain other counsel, so that the waste resulting from their futile efforts will not be prevented. Therefore, the questioner would not be morally required to withdraw.
Before considering the two cases you present, I wish to make a couple of preliminary points.
First, in presenting the problem, you express concern about the possibility that refusing to comply with an important client’s wishes might result in considerable loss to you. I am sure it is virtually inevitable that you feel such concern; one naturally fears any serious, foreseen, possible harm to oneself. But it would be wrong to let that influence your judgments about how to handle a client’s affairs. For the most part, pecuniary and other considerations can rightly be taken into account in deciding whether to accept a case or continue serving a client. But once the lawyer-client relationship is established and as long as it exists, you should firmly set aside such self-interested considerations. Then, so far as your other moral obligations permit, you should make all decisions about the client’s affairs exclusively on the basis of the client’s own true and legitimate interests. In serving those interests, you not only must zealously pursue clients’ acceptable objectives but assiduously counsel them to shape their objectives by their legitimate self-interest. Fulfilling professional responsibilities in this way, of course, also serves your own profound and authentic self-interest, as loyal and unselfish service to others always does, by helping make you both a good person and a professional on whose integrity clients can rely.
Second, political society provides the system of civil law as a facility to assist its members in their efforts to obtain justice in their disputes with one another and, in some cases, with its own agencies and other parties. This facility has limited capacity, usually fully employed, so that, as you well know, cases seldom are heard without delay. Apart from some extraordinary reason for pressing a case that has no reasonable chance of success, doing so pointlessly employs some of civil law’s limited capacity. Pointless employment of anything is waste, and waste of anything others rightly wish to use is unfair, because it impedes their appropriate use of it. In this matter, moreover, the waste is seriously unfair because it is likely to prevent others from protecting or obtaining important goods. Therefore, as a rule it is wrong to press any civil case with no reasonable chance of success.
The action for libel that the owner of the manufacturing company wishes to pursue against the local paper not only has, as you say, virtually no chance of success but is likely to be counterproductive. He wants to put his side on the public record, but few people are likely to have access to the actual record of court proceedings and not many of them are likely to consider it open-mindedly. Most people’s impressions will be drawn from the media, including the hostile newspaper whose wrongdoing has provoked your client. At best, some television and radio reports will be fair to him. But the broadcast media are not likely to cover such a trial in depth and so their coverage, even if fair, probably will not help him much. When the trial ends and the newspaper prevails, the public is likely to mistake that outcome for an official declaration that its views of your client and his activities are sound and his positions are indefensible.
Since pressing the lawsuit will not be in your client’s true and legitimate interests, you should do your best to get him to see this. It is not enough to tell him he will not win; tell him why he will lose and how the legal action will be wasteful and counterproductive. Then appeal to both his sense of civic responsibility and his legitimate self-interest to choose a different approach, offering more hope of solid benefits to himself and others for whom he is responsible, not least his business’s suppliers, employees, and customers. Since his problem centers in public opinion about his business and his personal life, the alternative approach he needs probably will have to be planned and directed by someone skilled in public relations. If a suitable person in that field is employed by your client, I suggest you seek his permission to consult that person about the public relations aspects of the problem, and then work with him or her to sketch out the alternative approach. If the client does not employ an appropriate person, I suggest you seek his permission to consult one yourself.
Your other client’s desire to obtain custody of his daughters, the eldest of whom is twelve, is reasonable in itself, and his purpose can be attained only by legal process. Therefore, you first should restudy the case and make every effort to discover a potentially effective legal strategy. (I admit, though, that the prospects are dim, especially since the children are living with their mother, and she can influence their perceptions of the situation and their attitudes toward their father.)
If you cannot think of a potentially successful strategy, I believe you should do your best to persuade your client not to contest custody. Point out to him that he can have no duty to attempt the impossible. Explain to him, too, that such a contest will compel the children to take sides and participate in their parents’ struggle—something likely to harm both them and their relationship with at least one parent—probably himself. Suggest that he consider other ways of maintaining a paternal relationship with his daughters, despite his wife’s gaining custody of them, and that he give thought to how best to use for this purpose his limited resources, including the ten thousand dollars that would be wasted in the custody battle. For instance, you might suggest that he consider giving up some income to spend more time with the children than he otherwise could and that he permit you to enter negotiations with his wife’s lawyer with a view to obtaining generous visitation rights. Finally, without planting false hopes, hold out the possibility that he might have an opportunity to gain custody of the children at a later date, should their mother seriously neglect or abuse them, or, perhaps, lose interest in caring for them as they make demands on her and impede her pursuit of other interests.
Must you withdraw if either or both clients persist in pressing their hopeless cases? I do not think so. The clients might well obtain other counsel, so that your withdrawal probably would not prevent waste of civil law’s limited capacity. This consideration is relevant because that waste, rather than anything about what you would do, provides the basic moral reason for not pressing these cases, and you will not be responsible for the waste if your clients insist on proceeding with or without your cooperation. Moreover, by continuing to serve them as best you can, you can try to limit the waste and protect them from various harms they might suffer if their cases were handled by lawyers less familiar with them. In this respect, your situation is similar to that of a physician whose patients fail to exercise or watch their diets, continue smoking, drink to excess, and so on. Although they are abusing health care resources, the physician may continue caring for such patients.
Still, someone might argue that you must withdraw, on the ground that in these cases there is only a frivolous basis for the action. The American Bar Association’s rule is: “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.”391
The comment on the rule, however, makes it clear that an action is not frivolous simply because the lawyer believes the client’s position will not prevail. It then adds: “The action is frivolous, however, if the client desires to have the action taken primarily for the purpose of harassing or maliciously injuring a person or if the lawyer is unable either to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument for an extension, modification or reversal of existing law.”
In the libel case, your client wishes to benefit himself rather than harass or injure his opponent, and you say you can make a case that the court should develop the law to vindicate him. In the custody case, your client’s objective also is legitimate, and you can present the case in favor of his being awarded custody of the children. It therefore seems to me that, while both cases are hopeless, there is a basis for each that is not merely frivolous in the rule’s sense.
391. American Bar Association, Model Rules of Professional Conduct (1993), Rule 3.1.