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Flies, Honey, Vinegar, & Ethics

02/11/2020

My mom always said, “You catch more flies with honey than vinegar.”  While I have not personally conducted any experiments to test this theory, it seems credible – a fly is more likely to become stuck in honey than to drown in vinegar.  Even in the absence of empirical evidence, it is ancient common wisdom.  It dates back at least as far as 1744, to no less an accomplished experimenter than Benjamin Franklin:

Tart Words make no Friends: a spoonful of honey will catch more flies than Gallon of Vinegar.

Adagial Earworms
Some things, like Mom’s advice, stick in your head, especially when reinforced by repetition.  Like “Plop, plop, fizz, fizz, oh what a relief it is”; “That’s a spicy meatball”; and more recently, “When your money goes further, so can your flooring.”  Comparatively, ethics codes suffer from not having been written by “Mad Men,” and not being a collection of catchy incredibly annoying jingles and taglines.  Every now and then, however, some ethics rule becomes deeply-planted in the mind to occasionally resurface. 

In my case, one such rule is "A lawyer does not violate [any duty] by acceding to reasonable requests of opposing counsel."  This aphorism reflects the philosophy of Edmund Burke, applying it to the allocation of authority between lawyer and client.  A lawyer is a client’s representative, not a delegate.  An attorney is not duty-bound to strictly follow a client’s instructions as a delegate would be.  Rather, a lawyer has the right, if not a duty, to exercise independent judgment and discretion in the handling of a case unless doing so would genuinely prejudice a client’s meritorious cause.

Imagine my surprise, then, when I went hunting for this adagial earworm in the Colorado Rules of Professional Conduct and came up empty.  I searched Colo. RPC 1.2, which discusses the allocation of authority between lawyer and client, Rule1.3, which sets forth the requirement that a lawyer act diligently, and the rest of the Colorado Rules. Zip. Nada. Zilch.

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ABOUT THE AUTHOR

Charles F. Luce, Jr.

Attorney