On Lawyers and Courage

Plenty of small, day-to-day signs and manifestations of lawyerly courage exist, and it can likely be found in most of us who practice law.

Jack H. (Nick) McCall

Retired Senior Attorney and Deputy Agency Ethics Official, Tennessee Valley Authority

Several years ago, amid a protracted and (at times) quite heated business negotiation, the opposing counsel made a statement in front of both client groups and me that struck me at the time as quite odd. 

It arose in the context of discussing a potential legal opinion letter to be provided by my client—a legal document that, as most transactional lawyers know, can be a “touchy” matter.  The discussion involved what my team was prepared to deliver versus the other side’s expectations for this letter. The conversation on this topic then blended into a general discussion of some very technical nuances of the deal: the kind of details that can be hair-splittingly thin to most clients, but exactly the kind of details that cause business lawyers to wake up at 2:00 a.m. and not go back to sleep.

Somewhat out of the blue, the lawyer on the other side, a very seasoned business lawyer of long practice, blurted out: “Well, all lawyers are cowards.”  The clients said nothing: on the other hand, I was appalled at this sweeping generalization.  Alas, we were all too soon back into the weeds of the deal’s details and issues, and the meeting clock was ticking. So, I did not get to challenge my counterpart to ask him exactly what he meant by that statement.  I wrote it down in my meeting notes and found myself noodling on it occasionally during the next few days. 

I have found my mind turning back to that seemingly off-hand comment often in the last two years. If I was shocked by its utterance then, I have only grown more perplexed and, frankly, more appalled by it as more time has gone by.

The point that my opposing number was trying to make may have best been expressed not by invoking the notion of cowardice, but by using the term prudence. The two concepts should never be mistaken or conflated.  

From our 1L days, prudence is drilled into the minds and legal skills “toolboxes” of most of us. Think back to all those Torts I cases that focus on the concept of the “reasonably prudent person.” One can easily see that from the outset of our training, prudence is a skill and expectation highly valued by the legal profession.  Prudence requires tempering the fires of one’s passions to think critically, rationally, dispassionately—perhaps even Stoically—about the goals to be pursued and the appropriate legal tactics to mesh with the relevant facts to obtain those goals. 

For business lawyers—going back to the bane (for many of us) of legal opinion letters—prudence is absolutely a must. When a lawyer, law firm, or legal department issues an opinion letter, it is telling the recipient, in essence: You can premise your deal on the correctness of this opinion and its application of this law to these facts. Typically left unspoken in the opinion latter is this corollary:  In fact, you can so take comfort from our opinion letter that we stand behind it and, if we are wrong, there are consequences, and you are entitled to pursue those consequences.  Does the fact that phraseology to this effect is never included in an opinion letter’s “boilerplate” or the ABA’s Opinion Accord wording mean that the lawyers issuing the opinion letter are cowards? I do not think so. It does, however, mean that they understand the rules, standard practices, and “lore” of giving and asking for opinion letters and appreciate what goes (and does not go) into them. Again, in such matters, prudence—not spinelessness—is the word of the day. This is especially true since the risks of law firm liability (and placing one’s law firm’s malpractice carrier on notice of a potential claim) are directly implicated in such matters. 

So, again, I return to that bothersome comment: All lawyers are cowards. Even with knowledge of the context in which it was said, it remains vexing. It is problematic. It remains a grotesque over-generalization. It disregards a great deal of the everyday courage that lawyers often display (and frequently have little choice but to display). 

Telling a client that, although its goals are admirable, they are not legally achievable; telling an otherwise wronged potential plaintiff that the statute of limitations bars what otherwise may have been a strong suit; telling one’s partner or supervisor that the law simply does not support that grandiose statement made at the client’s Board of Directors meeting—the delivery of each of those words of counsel requires a solid measure of everyday courage. To my thinking, plenty of lawyers display these small acts of “guts” on a daily basis.   

And, of course, there are more potent and more generally observed examples of lawyers’ courage in action. Accepting a death penalty case for the first time as a criminal defense lawyer has to be somewhere on that list, given the consequences to one’s client (and let us not forget the public condemnation that defense lawyers for accused murderers must often endure).  The Tennessee lawyers who banded together to argue one of the gay marriage cases decided in what is now known as the Obergefell[1] case before the United States Supreme Court surely required a high degree of moral courage in a state where the cause of gay marriage and LBQT rights remains not wholly popular with many Tennessee citizens. 

Certainly, it requires a certain measure of moral courage to ask a senior partner or more high-ranking supervisor, Why are you holding back on delivering this opinion letterEveryone else on the opinion review committee has signed off on this version, which embodies what you have committed to deliver to the other side.

Courage does not always consist of the big statements uttered in court and captured by the media or in pounding one’s fist on the deal table and uttering, “Not on my life!” Plenty of small, day-to-day signs and manifestations of lawyerly courage exist, and it can likely be found in most of us who practice law. Whether one is an extrovert or introvert, simply getting up to speak, argue, and press one’s points or case itself can be one form of day-to-day lawyer bravery.

All lawyers are cowards? Not on your life, I respectfully submit.

[1] Obergefell v. Hodges, 56 U.S. 644 (2015).

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