Fighting for Unicorns

A. Not if the facts warrant it.

Under Rule 1.3 of the Rules of Professional Conduct, you must "act with reasonable diligence and promptness in representing a client." Absent a court order precluding such motions, you are ethically obliged to provide zealous advocacy to achieve lawful objectives on your client's behalf.

"[D]espite opposition, obstruction or personal inconvenience to the lawyer," those who drafted the rule would counsel you to "act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf." Comment [1].

This is true even if your greatest obstacle is the judge himself.

In a case remarkably similar to yours, an attorney seeking emergency relief received a sharp and highly-publicized rebuke from a federal judge in Illinois. Refusing to schedule a prompt hearing, the court mocked plaintiff's counsel for addressing a problem that seemed trivial when compared with a worldwide crisis.

Because "the community is in the midst of a 'coronavirus pandemic,'" the judge chastised this lawyer for arguing that his client "will suffer an 'irreparable injury' if this Court does not hold a hearing this week and immediately put a stop to the infringing unicorns and the knock-off elves."

Questioning the importance of his client's cause, the court doubted that "the fake fantasy products are experiencing brisk sales at the moment." Unwilling to grant a restraining order that may impose "a cascade of obligations" on third-party platforms that sell these items, the judge feared that "it would distract people who may have bigger problems on their hands right now."

While conceding that he could hear the case by phone, the judge claimed that "resources are stretched and time is at a premium. If there's ever a time when emergency motions should be limited to genuine emergencies, now's the time."

Failing to explain why he lacked the "resources" of a telephone or the time to use it, the judge had no interest in the impact on the plaintiff's business. Instead, he admonished its allegedly over-zealous advocate to keep his own client in check. Borrowing "sage" wisdom a century old, the judge advised that "[a]bout half of the practice of a decent lawyer is telling would-be clients that they are damned fools and should stop."

Decent lawyers would not dismiss their clients as "damned fools" for seeking appropriate relief in a court of law. Nor would decent lawyers let rights lapse because others "may have bigger problems on their hands right now."

Zealous lawyers aren't the problem. In my view, far too many judges are sitting on their hands right now. Showing little zeal to reopen courts on virtual platforms, many court administrators prefer to blame the pandemic and "limited resources" than to implement the technology needed to handle their cases.

If lawyers did the same, we would violate our duty of diligence to our clients. Like a unicorn, every client we represent is unique. At times, we must counsel a client against certain action. But once we decide to pursue it, we can't let a derisive judge extinguish our zeal.

So don't be afraid to fight for the court's attention and to treat this case like it's the most important one you have. To your client, it is.