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Robert S. Duxstad
Daniel P. Bestul
Lance A. McNaughton

Lawyers Have Values, Too

Posted: 5.30.2019  |  Author: 

I don’t think I could ever argue for something I didn’t believe in”.  Lawyers hear comments like this all the time.  The stock answer goes something like this: our legal system is essential to the protection of individual property and liberty.  The lawyer's job in that system isn’t to decide right and wrong; our job is to represent and advocate for those who entrust us with their life, liberty and property.  These are the core values our nation was founded on.


All of that is true, of course.  But it didn't go far enough for one person I recently spoke with, and I should have known better.


My conversation was with a high school student, a member of one of the teams participating in the Wisconsin High School Mock Trial tournament.  I had been asked to help out teams from New Glarus, Belleville, River Valley and Reedsburg as they practiced their tournament presentations.


In mock trial competition, teams must prepare to present both sides of a fictitious case.  There is no "right" outcome to the case, and there are a multitude of ways to approach the case.  The students sift through the legal materials and witness statements they are given, develop a theme for the case they want to present, draw up opening and closing arguments, and direct a cross-examination of witnesses to communicate their theory to a jury.  Given that the partner in my conversation had just completed two rounds of practice trials where she presented both sides of the case, there was no way the stock answer was going to be good enough.


What I should have said is that lawyers don’t argue for things they don’t believe in.


We don’t abandon our values and principles when we become lawyers.  We take on responsibilities that reflect the values of our profession as well as the values that shape the laws that guide us.  And we get to keep our personal values, too.


Before I agree to represent someone, I have a long conversation with them.  I tell the prospective client this is a job interview:I am being interviewed to see if I am the right lawyer for them, and I am interviewing them to see if I think I can fulfill my professional obligations to them.


Lawyers can decide what kinds of work they do and aren’t required to take on every matter that comes through the door.


We are not supposed to take on a legal matter unless we have the requisite skill, knowledge, and time to provide a competent representation.  I focus my work on family law and I am comfortable handling just about anything that comes my way in that area.  Earlier in my career, I also handled criminal and traffic cases, and was very comfortable with them, too; as I represented clients at every level of the Wisconsin court system, from municipal courts to the Wisconsin Supreme Court, and even had occasion to petition for relief from the Supreme Court of the United States.  However, I stopped doing those cases many years ago, and I would be way out of my element in a criminal court today.


In addition, I owe a duty of loyalty to my clients, which means I can't represent both sides in the matter, nor can I use information I get from a client in one matter, against them later in another matter.  Instead, I would have to refuse to get involved in the later matter.  We try to screen for these conflicts as best we can before the “job interview”, although there are times when the conflict does not become apparent right away.


Because I also have a duty to maintain confidentiality, I can’t explain why I am declining representation in these cases.


Perhaps most importantly, lawyers are not allowed to take on legal matters if there is a significant risk that the representation of the client might be materially limited by the lawyer’s personal interests.  Our professional responsibility rules tell us that we must refuse to take on any representation if our personal beliefs and values would get in the way of providing full and complete representation.  This can cover a lot of territory, but the underlying principle is that the client is entitled to representation by a lawyer who is sincerely committed to advocating for the goals and interests of the client.  If it looks like I won’t be able to provide that representation for any reason, I decline representation.


If I’m unable to take on a case, my practice is to point them in a direction where they might be able to find someone who can help them.  That might mean a referral to another Duxstad & Bestul attorney; to another lawyer I know who could handle it; or to a lawyer referral service like the one run by the State Bar of Wisconsin.


Even after taking on a client, I keep tabs on things, as something may come up that could affect my ability to do my job.  While I am generally allowed to make any argument that can reasonably be supported by the available evidence and the relevant law, I cannot act or assert a position if doing so would only serve to harass or maliciously injure another.  I cannot make a false statement of fact or law to the court or offer evidence I know to be false.


Although we also generally owe a duty of confidentiality to our clients, I am required to take appropriate protective action if my client tells me that they intend to cause harm to another, or to another’s property.


I suppose the popular misconception that lawyers must make arguments they don’t believe in comes from what the public sees in criminal cases.  We place a very high value in individual liberty and protection of property, and the Wisconsin and United States Constitutions make it very difficult for the government to deprive a person of either one.Lawyers who represent people in criminal cases are, as I told the student, upholding those important values.


I probably should have concluded my talk with something like this: “I get that, whatever career path you choose, you wouldn't want to compromise your core values and principles.  And I get that you don’t think you could stand up, in front of a judge or jury, and make an argument you didn't believe in.  Not only is that commendable, but that's exactly the sort of thing that makes for a good lawyer.”


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