There are plenty of words that lawyers use frequently that are not part of normal people’s conversation. One that lawyers use a lot, but non-lawyers may not have -heard- us use, is “zealous.” It’s an ideal of the profession to provide “zealous advocacy” for clients, and in fact it is an active obligation of lawyers under professional rules in most US states. (ABA Model Rules of Professional Conduct.)
The positive side of this ideal and obligation are that really, good lawyers -do- do everything in their power to represent their clients well. But on the negative side, the culture of law, the socialization of lawyers, and, let’s be honest, the personalities of many of the individuals attracted to legal professions, skew the practices of lawyering toward certain modes of zealous advocacy.
Or, as I put it on Twitter a while ago, often the “default setting for “zealous advocacy” is “adversarial douche”.”
Making that comment, I was thinking of a couple of pieces of contract drafting I had seen recently from the lawyers for cultural organizations and arts non-profits. A lot of the time, lawyers draft contracts for parties who have pretty strongly contradictory interests overall, and so their “zealous” mode is to try to make the contract as favorable to their own client as it can be, shifting as much liability and obligations onto other parties as it is possible to do. It can get pretty tiresome when all the parties involved in a contract situation have all lawyers trying to do those things, but it’s a common mode in which lawyers operate.
However, when cultural organizations and arts (or other) non-profits contract to work together, most of the time most of the parties have pretty closely shared interests overall. And even where interests diverge (i.e., most parties would usually rather -someone- else carried the liability), the parties are really unlikely to ever want to take a legally aggressive stance toward enforcing the contract – for lack of resources to bring a suit, or just because of the political repercussions of suing a partner organization. Yet the contracts I was seeing were extremely aggressively drafted, with that underlying thread of “zealous advocacy is pressing -every- advantage for my client, and every disadvantage for everyone else.”
Now, a really good, experienced lawyer, might have realized independently that “aggressive” was not the right form of “zealous” for a partnership agreement among non-profits with shared goals. But even some very good lawyers are sometimes so caught up in their usual practices that they don’t immediately think to switch tactics.
So here’s an important thing to think about: you’re the client, your lawyer works for you. You actually can, and should, tell them -how- to approach your legal issues. They should be giving you information about the legal issues, and offering you advice on how to approach them, but if you say “I don’t want to be an adversarial douche”, they should listen to you. It’s appropriate for them to try to convince you of certain tactics if they have good reason, but if they don’t persuade you, they should listen to you. A lawyer who overrides a client’s preferences on this kind of thing is actually not a good lawyer, nor zealously advocating for their client.
This is not just true in contract drafting; it’s true whenever a lawyer is communicating on behalf of their client, and especially in public communications. For example, museum policies sometimes include long lists of legalistic “NO” and “You must…” language. Some of that language has often been shaped by lawyers trying to zealously protect the museum – but museum visitors are not adversaries of museums, and communications with them shouldn’t treat them as such.
In an institutional context, your lawyer may actually work for your institution, and that may sometimes be a different source of conflict – what one sub-group of the institution wants, legally, may not always be in the best interests of the larger institution in the long run. But even in these kinds of situations, a good lawyer will recognize that different styles of lawyering are appropriate to different contexts – several of my favorite people to work with in our General Counsel’s office here at the University of Minnesota will offer their default approach to a particular issue, but then say something like, “but you’re the client, if you’d like to go another way, that’s okay too.”
Lawyers should be particularly sensitive to what mode of “zealous advocacy” they’re working in anytime they are making formal legal communications that might be shared with the public. In the Internet Age, that’s pretty much -any- formal legal communication, especially to any person or entity with any kind of online presence. There’s this thing called the Streisand Effect – technically, it’s about how futile and actively counterproductive it is to try to censor information online, but a similar idea applies and multiplies the effects of poorly-thought-out or poorly worded legal threats in general. If your lawyer isn’t thinking about their Cease & Desist letter going viral, they are engaging in very poor lawyering indeed.
One great recent example of a lawyer engaging in default “adversarial douche” zealous advocacy, and another lawyer responding with appropriate-to-the-situation zealous advocacy, can be seen in some of the recent exchanges about “Left Shark“, a doofy meme derived from the recent Super Bowl XLIX* halftime show. A 3D printed figure of the shark was posted by Fernando Sosa on Shapeways.com, and Katy Perry’s lawyers sent a cease-and-desist letter. The letter is pretty aggressive, in a pretty standard lawyerly (read: adversarially douchey) way – and the internet did not take all that kindly to that aggression.
In his response, NYU law prof Chris Sprigman took an entirely different tone. In addition to being just-slightly-snarky in a way likely to generate positive commentary online, it’s also just generally much more reasonable and conversational. The calm and collected tone is particularly well-calculated here, when the high-profile firm representing Perry has… perhaps slightly jumped the gun on some of their legal analysis. For example:
“As you likely know, federal courts and the United States Copyright Office have made clear that costumes are generally not copyrightable. Please tell me why you think the Left Shark costume should be treated differently.”
It also highlights that one underlying reason some lawyers work in this default mode is that it’s a good way to create more work for lawyers.
“My client wants to get back to his business, and he (and I’d wager pretty much everyone else) would be grateful if you’d just back off. Going ahead with these very dubious copyright claims will not benefit Katy Perry. But if you’re determined to press on, please do respond to my legal questions, and we can try to work it out from there.”
Sprigman’s full letter is available on Mr. Sosa’s blog (some images possibly NSFW, depending on where you work.)
Overarching point: your lawyer works for you. With legal documents or in other legal situations, you can encourage them to take an attitude other than “winner takes all” – though there may be some times when an adversarial approach is warranted, even for a non-profit public interest group. You can also, especially in any communications that are directed to -or- likely to be read by the public, direct their tone. Not sounding like a stereotypically “zealous” lawyer may often be a good thing for you and/or your organization, and a good lawyer should recognize that and adapt appropriately.
*Yes, I used that trademarked name without permission or a trademark symbol! Amazing. It’s almost like I’m allowed to use words to refer to the things they name, or something.
