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Legal Etiquette for Difficult SituationsMichael Maslanka offers some solutions to tricky legal etiquette issues, presenting a guide for the hopeful, the aspiring and the bewildered on such matters as how to reject business; how to do right when asked to do wrong; and how to leave a client better off.
2012-12-28 02:53:10 PM
Let's talk legal etiquette -- the real deal, though. No platitudes on returning phone calls promptly, promising to adhere to a budget or proclaiming knowledge of the client's business. No, let's talk about the hard stuff, which is more immediate, useful and hard-wired. Here, then, is an etiquette guide for the hopeful, the aspiring and the bewildered.
No. 1: How to reject business: I met with the CEO of a business in a creative industry. He wanted me to draft non-compete agreements for his employees. Sounds great, right? Solvent client, interesting work.
But then he said, "I don't know why I need a non-compete. My employees love me. Sure, I throw things at them, but it's the creative process." Stop the presses. My response: "Your problem requires immediate attention, and I am unable to do so now. There are many board certified labor and employment lawyers who can help you." (By the way, do not pawn someone like this off on a fellow lawyer.)
There is a saying among salespeople: The best sale you make is the sale you didn't make. That was all Zen to me until this meeting. Think about this when temptation next knocks.
No. 2: How to act as a businessperson: Why do lawyers often answer the knock on the door and take on business that we shouldn't? My answer: Each of us has a powerful need to be liked -- not Facebook "liked," but liked on a real and personal basis. For a lawyer, nothing says "I like you" as much as being hired to be a trusted adviser.
But this need to be liked, chosen and trusted should never override basic business sense. Back to the CEO with whom I met: If he throws things at his employees, how would he treat me and my staff? He would make unreasonable demands, suck up lots of time and then complain about the bill. Remember: It is easier to stay out than get out.
Lawyers' need to be liked undermines business sense in other ways. Very few attorneys relish sending out bills. But sometimes this means they let bills sit on their desks for months because they subconsciously believe that clients, when receiving bills, will like them less. Let me be direct: Such action (or inaction) is unethical because it puts attorneys' needs (to be loved) above clients' needs (accurate budgeting).
No. 3: How to do right when asked to do wrong: Let's move on to another client, whose deposition was slated. When we met in advance to prepare, he acknowledged engaging in inappropriate behavior toward a female subordinate.
Later, with one call, he put me in an ethical pickle: "Now that I think about it, she was the aggressor, not me. And it's her word against mine. It was all behind closed doors. That's how I plan to testify -- just a heads up." Thanks a lot.
Option No. 1: Be the ethics police, become outraged, tell him that perjury is wrong, get fired. He then goes to another lawyer and does not tell him the truth.
Option No. 2: Remember Dr. Samuel Johnson's advice: It is always better to remind than to lecture. I wrote him a letter and sent it as a PDF, explaining that I understood that his comments were borne of frustration with a slow, costly and emotionally draining legal process. I noted that we had developed a good relationship and emphasized that I knew he would never do anything to cause me to withdraw as his lawyer. I sent the message, and he understood it. We went to mediation before his deposition. All was resolved.
Life is not always black and white. He made a mistake. He deserved a chance to correct it. And I needed to ensure that I did what was necessary not to foster a lie. Etiquette sometimes requires an intricate cha-cha with a client, not a hard-charging disco hustle.
No. 4: How to leave a client better off: Clients present counsel with a wonderful opportunity, each and every day, to affect their lives in a positive way. Seize these opportunities. I was defending a physician who faced allegations of sexual harassment. His wife and daughter got caught up in the wake of his indiscretion. His lament: How could I have let this happen?
My response: It is a given that all people fall short of ethical standards. They forge their character by how they respond to what they've done. Reframing an issue is the lawyer's art. And here's the karmic bonus room: Those we help can go on to help others.
No. 5: How to graduate from BFFs to real friends: I read somewhere that a lawyer's clients should be his/her friends: vacation together, know one another's family members and help each other's careers. I have my doubts. Yes, the best lawyers are friends with clients -- but in a transcendent way.
Look at Hamlet, a guy with a lot of troubles, and Horatio, his counselor. A passage in Act 3, Scene 2 shows Hamlet explaining to Horatio why he is Hamlet's friend and adviser. Horatio gives Hamlet the straight dope, not what Hamlet wants to hear: "No, let the candied tongue lick absurd pomp."
Horatio learns from all his experiences, good and bad: "[F]or thou hast been/As one, in suffering all, that suffers nothing" and gives "equal thanks" to all experiences because it makes Horatio wiser.
Horatio feels strong emotion for Hamlet and will defend him but will never let that passion override his judgment: "[A]nd blest are those/Whose blood and judgment are so well commingled,/That they are not a pipe for fortune's finger."
Hamlet then tells Horatio why he values his friendship: "Give me that man/That is not passion's slave, and I will wear him/In my heart's core, ay, in my heart of heart." Translation: friendship based on values, not on frequent-flier miles, pricey holiday gifts or promises to be BFFs.
Etiquette establishes respect, and respect creates healthy and functional relationships with clients. Without etiquette to guide attorneys, we just flounder, lurching from here to there, making it up as we go along. Etiquette: It never goes out of style.
Michael P. Maslanka is the managing partner of the Dallas office of Constangy, Brooks & Smith. He is board certified in labor and employment law by the Texas Board of Legal Specialization. His podcasts and "Work Matters" blog can be found at www.texaslawyer.com. His email address is firstname.lastname@example.org.