Lawyers Should Not Exploit Unfair Advantages

Lawyers are taught that they should exploit every advantage possible to serve a client’s interests. Indeed, some might argue that a lawyer’s duty of diligence requires that an attorney take every step that will advance a client’s position even if this might unfairly impact other stakeholders to a dispute. However, lawyers may feel they cannot exploit certain advantages in good conscience since it would be unfair to other parties and may hurt long-term relationships with other lawyers or stakeholders involved in a matter.

Numerous times in my career, I have exploited mistakes made by adversaries. Some adversaries have alleged that it was wrong for me to do so, but usually adversaries were simply upset that their mistakes had been surfaced and that they did not follow correct procedures in the first instance. Indeed, I have even secured the dismissal of cases since adversaries failed to follow rules which deprived a court of jurisdiction or otherwise fatally impacted a case.

On the other hand, in several circumstances in my career, courts have dismissed cases against defendants I represented because the courts themselves made mistakes. For instance, in one jurisdiction in which I practice, it is common for courts to administratively dismiss a case because they believe a party did not attend a court conference or is not pursuing discovery. One time, a court dismissed a case since the court did not see that my adversary and I had resolved a motion to dismiss on our own, and this is why my adversary did not file opposition papers to my motion to dismiss.

Courts are overburdened, and they are prone to making mistakes just like everyone else. When I secured an advantage because a court made mistakes, I never sought to exploit an advantage on behalf of my client. I told my adversaries that I would help them get the cases back on track and that I understood that a negative result had occurred because of a judicial mistake rather than anything that the lawyer did or did not do. In such circumstances, I put myself in the shoes of my adversary and hoped that other lawyers involved in a dispute would refrain from exploiting an unfair advantage if I was in the same situation as the other lawyer.

In some circumstances, clients have explicitly requested that I exploit an unfair advantage obtained due to a court error, even though I did not want to exploit the situation. Clients are often very emotional when they are involved in a legal matter, and they are sometimes filled with bitterness or anger due to the circumstances that required them to get involved in the legal process. They usually do not understand that courts made a mistake and that it would be unfair to take advantage of the situation.

In such circumstances, I usually try to explain the practical benefits of not taking advantage of an unfair benefit that resulted from a court error. Exploiting such an advantage would likely sour connections to adversaries that could make it more difficult to resolve a given matter. In addition, lawyers may need courtesies down the road, and adversaries may be less willing to grant courtesies if another lawyer connected with a matter exploited an unfair advantage. In addition, courts may not look kindly upon lawyers who took advantage of a court error, and refraining from exploiting such an advantage can elevate a lawyer’s image in front of a court.

All told, lawyers may instinctively want to take advantage of every benefit that a client realized during a dispute, even if it was the result of a court error or other unfair situation. However, lawyers should play the long game and not exploit unfair advantages to the detriment of adversaries.

Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

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