By Elizabeth Aspinall & Nancy Carruthers
Practice Advisors receive close to 5,000 phone calls and emails per year. The issues on which lawyers seek our assistance certainly vary (we see everything from dealing with difficult opposing counsel to dealing with difficult clients – with “difficult” taking on a vast definition). Unsurprisingly, we see many of the same issues arising across the full spectrum of practice areas. We thought this was a good opportunity to raise some of the issues we see and address. Here are our top ten:
- We are frequently asked to navigate and even mediate disputes between lawyers, and we are happy to do so. Our assistance is less effective, and possibly even counterproductive, when one lawyer misquotes us to the other.
- Lawyers on both sides of a dispute between counsel can fail to appreciate their own roles and ethical obligations (including civility). Lawyers should not see all opposing lawyers as the enemy. Doing so guarantees that you will neither enjoy practice, nor serve your clients in the most effective way possible. One of the best antidotes when the relationship with opposing counsel has soured is to try to establish a better connection with that lawyer. We know one lawyer who takes the other out for coffee when the file starts heading down the path towards antagonism. That is one of many effective strategies for managing the relationship.
- Lawyers cannot withdraw simply because the client does not accept their recommendation, nor can lawyers unilaterally make the decision to withdraw, no matter how difficult the relationship may be. While the client’s loss of confidence in the lawyer can terminate the retainer, ethical practice requires at least a conversation with the client so that the withdrawal occurs so as to minimize potential prejudice to the client.
- Lawyers do not instruct clients: lawyers make recommendations and clients instruct lawyers.
- While email is a fundamental form of communication, using it without being mindful of ethical practice can result in problems. The rules of confidentiality and privilege still apply. Lawyers should not copy their client on a message to opposing counsel, and should not get mad when the recipient replies all. Conversely, when the opposing lawyer copies their own client on an email, the receiving lawyer should not reply all. That is communicating directly with the opposing party.
- Treat email like you would any professional communication. Avoid “snapping back” a response. Draft a considered and professional reply. If you are feeling angry or emotional while drafting that reply, wait a while before you hit send and consider redrafting when you are feeling calmer. Also avoid using all caps – it is akin to shouting. Treat every communication as if it will be exhibited in an affidavit. Do you really want the court reading that email where you look emotionally engaged and unreasonable?
- Conflicts of interest are an unavoidable part of practice: they happen. When a conflict arises, assess whether it truly (honestly and truly) is in the client’s interest for you to stay on the file. It is the rare file when another lawyer cannot represent your client. Honestly assess when a conflict may disqualify you from acting and let go so that you avoid distracting from the client’s ability to advance the file. Your own interests are engaged, as well. If there is a conflict, you may not be able to bill that time, and could have spent it more effectively working on a file that you can bill.
- File transfers are frequently emotional and antagonistic. Lawyers should avoid being the vehicle by which a client tries to avoid paying previous counsel. A client who can pay their former lawyer’s account should do so and proceed to taxation if they have concerns, rather than asserting prejudice as a means of avoiding paying.
- Lawyers should not blindly do what their clients tell them to do. If you think your client is up to something, you have a positive obligation to ask questions and, if appropriate, withdraw. Do not allow yourself to be the vehicle by which your client seeks to achieve a nefarious end.
- Lawyers will often say that their obligation of zealous advocacy justifies their overly aggressive conduct on a file. In fact, the Code of Conduct states that lawyers should “resolutely” advance their clients’ interests. Be firm and be strong but remain objective and reasonable to advance your clients’ interests effectively.
The Practice Advisors appreciate that many situations appear more gray than these 10 examples suggest. We are happy to speak to you and help you work through ethical and practice issues.