“If you step on people in this life, you’re going to come back as a cockroach.”
— Willie Davis
I was speaking to a young litigator recently who had just settled a contentious and seemingly nasty case. He described the matter in such militaristic terms and with such passion that I half expected Norman Schwarzkopf to walk in at any moment to congratulate him. His recitation did stir memories of how I (and I trust others) remember their early days in practice, when a simple motion to compel discovery was tantamount to a morality play that could only end fairly if your client emerged victorious.
As careers progress, most lawyers — but certainly not all — learn the value of ratcheting back on the practice of infusing every matter or deal with a life and death pretext. In so doing, they also realize that it not only is possible, but also is preferable, to treat their adversaries with respect and not as if they are diving for a loose ball against them with seconds left in a championship game.
No lawyer needs to be reminded that the Model Rules provide that clients must be represented zealously; failure to do so will quickly convert those persons or companies into ex-clients. What some lawyers forget though, especially in the heat of a battle, is that the Model Rules, common sense, and the higher calling of treating others as you would like to be treated, proscribe scorched earth behavior that is intended to treat opponents as if they really are at war with you. For example, Model Rule 4.4(a) provides in pertinent part that: “In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay or burden a third person.”
We will table the sermonizing for a minute and will consider an example that illustrates what the impact may be to you, and your client, if you act like a jerk or otherwise make every step of a case or deal exceedingly difficult. Assume an attorney either took the deposition of an opponent’s CEO or participated in key negotiations with him during the pendency of a deal. Further assume that Attorney A was firm but fair with opposing counsel and the CEO throughout the process, defended his client’s interest at every turn, and proved to be a very formidable adversary. On the flip side, Attorney B denied every request for an extension or similar relief, attempted to show up his adversaries throughout, and did his best to make the deposition or deal negotiations brutally difficult.
It would be impossible to know who might win in such an example, as incidental things like the facts and law are unknown. Nevertheless, it would be hard to imagine that the boorish behavior may not seep into the process to influence a judge or jury or to make a settlement more expensive if the adversary digs in its heels because of how he was treated. Consider five possible consequences of how things may play out in the example above.
First, what are the odds that the opposing CEO will ever want to make another deal with Attorney B’s client? There likely will be a hangover effect for the executives in a company that felt like it was mishandled in a matter — I witnessed that first hand during my in-house career. As such, this may strike that company from future deals, or, if a company really needs to work with that former opponent, the cost of the deal for that opponent is likely to be higher. As a result, even if Attorney B was only near or on the line of propriety in how he handled himself, he may have hurt his client in the long run.
Second, many partners I have worked with have recounted that some of their most important clients today were opponents in the past. In fact, one such partner described precisely this type of scenario, as he had been engaged in a tough, but fairly fought case that led him to take a three-day deposition of his opponent’s CEO. About six months after the case had settled, that CEO called the partner and hired him to handle a new case. In so doing, the CEO explained that he was impressed with how thorough and tough the partner was, but he was more impressed that he embodied those attributes in a fair and balanced way. The CEO related that this is the type of lawyer and person he wanted representing his company. It is fair to say that our Partner B in the hypothetical above would never have received that type of call from a similar CEO.
Third, despite the global aspect of the business world in which we operate today, it is trite, but true, that things can come full circle to impact you in a micro way. The CEO who was so roughly treated by Attorney B may, in the future, be the CEO of another company, or on a board of directors that will make the call as to whether Attorney B and his firm is awarded new work when an RFP that he spent days compiling is decided. How do you like Attorney B’s odds in that situation? Similarly, senior executives of companies talk at conferences and in other settings about a myriad of issues, including their opinions of lawyers. If Attorney B’s name were to come up in a discussion that the CEO in our hypothetical was involved in, how damaging do you think it would be for Attorney B, and his firm, if that CEO is asked to opine about his experience with Attorney B?
Fourth, opposing counsel relationships are also quite important. We’ll set aside, for a sentence or two, the importance of decorum in our profession. From a practical standpoint, opposing counsel are often crucial to a lawyer’s practice, which is especially the case for those who primarily get their work through referrals. If Attorney B is such a lawyer, how strong will that referral pipeline be after he has run roughshod over his opposing counsel?
Finally, there are innumerable ways that loutish behavior can come back to haunt someone like Attorney B. Consider situations in which Attorney B may be perfectly qualified, on paper, for admission into a professional or civic association, or is up for membership on a charitable board or even a private club. He may be mystified when that membership application is rejected for no easily discernible reason. What he may never know is that an adversary that he had treated poorly was part of the decision making process and had not forgotten how Attorney B had handled himself in their encounters.
The line between zealous advocacy and tough, but fair representation is a tricky one and is not as clear cut as the examples used in this piece. All of us struggle with it to some extent, especially in our earlier years in practice. It may be overly simplistic, but following the Golden Rule is certainly one precept that should serve most of us well in trying to divine where the dividing line is drawn.
For all the Attorney Bs in the profession and perhaps most of us fit that description, at least in part at some point during our career, remember that winning is good enough — there is no need to totally grind your opponent into submission and total surrender. For all the reasons discussed herein, karma may rebound on you some day and the payback may be painful. More importantly, though, heed Frank Barron’s admonition: “Never take a person’s dignity. It is worth everything to them and nothing to you.” •
Frank Michael D’Amore is the founder of Attorney Career Catalysts, www.attycareers.
com, a Pennsylvania based legal recruiting and consulting firm that focuses on law firm mergers and partner placements. He is a former partner in an Am Law 200 firm, general counsel in privately held and publicly traded companies, and vice president
of business development. He can be reached at email@example.com.