Litigators, Small Law Firms

Always Be An Advocate

Young lawyers in private practice must struggle to keep in mind that they are hired as advocates for their clients, not judges who decide the law (nor law students who think they should decide what the law should be).

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Young lawyers in private practice must struggle to keep in mind that they are hired as advocates for their clients, not judges who decide the law (nor law students who think they should decide what the law should be).

Even the best young lawyers in private practice routinely have a problem, and it’s fighting hard for a client who they think should lose. My advice is very simple: always maintain your integrity, but get over it quickly or find a new job.

As private litigators like my colleagues and I and many readers of this column, we unquestionably have an obligation to justice. By doing our work well we hopefully ensure that disputes are resolved in the right way, at least most of the time, and in doing so promote harmony and order in society.

We also have obligations to the courts. All lawyers, including private lawyers, are so-called officers of the court, and must defer to their judgments and promote respect for the justice administered by our judges.

Moreover, we have obligations to our own integrity. No one undermines his or her integrity by accident. You can violate a court rule by accident. You can break an ethical rule by accident. But you can’t go against your conscience by accident. I believe the most important quality of a truly great lawyer is integrity. And it’s our responsibility to maintain our integrity as our highest professional responsibility.

But if we agree on all that—we must maintain our integrity above all, but we must also be mindful of our obligation to the administration of justice—we then have to come back to my starting point. Private lawyers are advocates. We should act like advocates, otherwise we will not serve our clients. Indeed, in a system in which all sides are represented by adversaries whose responsibility is to their clients, there will not be the aforementioned administration of justice unless we do act like advocates.

We are not judges. Judges decide the law, and who wins in a litigation, not us. Perhaps our argument is weak and we are concerned that some judges will go the other way. Perhaps we, as jurors, think we would vote against our client. Perhaps if we were arbitrators we would award victory to the other side, but none of these are our calls to make.

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If we think if our client has a weak case, we are certainly obligated to share that with the client and advise accordingly. We should not be yes-men and women. But if we share with the client our concerns, explain why we think their case has a weaknesses or that the argument the client wishes to make is likely a losing one, and the client still wants us to proceed, we proceed.

Obviously, I hope, we are not legal tools. If we think the client’s claim or argument has no merit at all (as lawyers use that term), or that the client wants to misuse the system and our services, we say no.

But, again, with the perhaps annoying list of caveats from above (I am a lawyer, after all), young lawyers need to remember we are advocates and must act that way. We are not judges. We are not law students musing on how wonderful it would be if the law were different. In private practice we are not prosecutors (for whom winning means determining the most just result under the circumstances and seeking that, not the highest charge we can assert). We are advocates and must win for our clients.

John Balestriere is an entrepreneurial trial lawyer who founded his firm after working as a prosecutor and litigator at a small firm. He is a partner at trial and investigations law firm Balestriere Fariello in New York, where he and his colleagues represent domestic and international clients in litigation, arbitration, appeals, and investigations. You can reach him by email at john.g.balestriere@balestrierefariello.com.

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