General Practice, Solo, and Small Firm Division The Compleat Lawyer
Winter 1998 © American Bar Association. All rights reserved.
Representing a Fellow Lawyer
BY JILL SCHACHNER CHANEN
Jill Schachner Chanen is a freelance writer in Chicago. She writes regularly for The Compleat Lawyer.
Theresa Gronkiewicz, a Chicago lawyer known for her defense of lawyers facing professional misconduct charges, recalls the day another lawyer turned up in her office, desperate for her to represent him.
The would-be client had a hearing before the state agency that disciplines lawyers in two days, and he had yet to retain counsel. Although it was against her better judgment to take on a new client so late in the game, Gronkiewicz did not have the heart to turn the lawyer away. For the next two days she scrambled to prepare a defense for the lawyer. Then, much as the client had hoped, Gronkiewicz secured a dismissal of the misconduct charges against him.
When she sent him a bill for her services a few weeks later, Gronkiewicz expected the grateful lawyer to pay without question. But as the weeks turned into months and the bill remained unpaid, she realized that the lawyer whose career she most likely had saved on 48 hours' notice had no intention of paying her. Sadly, she notes, she had to sue the attorney-client to recover her fees.
The memory is still a bitter one.
"It is offensive to have a client in the same profession, who knows how much effort was put into his case, not pay," she says. "You expect a lawyer to be more appreciative."
But when your client is a lawyer, anything can happen. From not paying bills to refusing to heed their lawyer's advice to double- and triple-checking their files, lawyers are renown for being some of the worst clients another lawyer could have.
Jeffrey Robinson, a principal in Baach, Robinson & Lewis in Washington, D.C., explains why he believes lawyers have earned this reputation.
"Lawyers care about what they are involved in," says Robinson, who frequently represents other lawyers in partnership and employment disputes. "Whether it is a challenge to their professional reputation or their involvement with their business associates, they care a lot. That is what can lead them to nudge you so much."
Not Your Everyday Client
Despite this sometimes grating behavior, Robinson believes that lawyers actually are some of the best clients another lawyer can have because of the knowledge and experience that they bring to the table.
Kathleen DeLaRosa, a solo practitioner in Phoenix who has represented fellow lawyers in civil litigation matters, agrees. "Lawyers understand what is going on. They know that their case will not be resolved overnight. They also understand the ups and downs of litigation, and they know that one adverse ruling does not mean that the whole case is lost," says DeLaRosa, who notes that a lay client once fired her after losing a motion.
At the same time, however, this knowledge and experience often makes lawyers unable to cede control. Instead, they may insist on controlling strategy, negotiating for themselves, and even questioning the opposing counsel while on the witness stand.
"Lawyers are trained to be advocates, so you have that problem with them when you represent them," Gronkiewicz says. Because of this role, which lawyers find so hard to shed, she lectures most of her attorney-clients on the ground rules of her engagement. Once told the ground rules, Gronkiewicz reports that few lawyers are problematic clients for her.
Set Your Boundaries
Others, however, cannot contain themselves from giving advice to the lawyers they hire to represent them, even when the scope of representation is out of their field.
A defense lawyer in Staten Island, New York, says he once had to contend with a barrage of phone calls from a corporate attorney-client who was offering trial strategy on his malpractice case. The corporate lawyer had called friends who were trial lawyers for advice and then relayed the secondhand information to his defense lawyer. Finally, the lawyer had enough. "You have to say to them, ‘Look, you do your trusts and estate work and let me do mine,'" he says.
Washington, D.C., domestic relations lawyer Linda Ravdin of Ravdin & Wofford also has found that lawyers tend to have more expectations than other clients. "They have lots of questions and want them answered," she says. "They want your advice, but they also want enough information to make their own decision. They view themselves as the decision maker."
Despite these increased expectations, Ravdin sees no reason to treat lawyers differently than other clients. She believes it is a mistake to assume that an attorney-client will have more knowledge and understanding of the law and procedure than other clients do just because they are in the same profession.
"The only thing I do differently when I represent other lawyers is use certain terms without explaining them, like personal jurisdiction," she says.
Ravdin says she has never found an attorney-client to be insulted by this presumption when she is retained.
Many lawyers do, however, feel the need to keep their attorney-clients more apprised than they do with other clients because of the heightened tension that inevitably exists in these relationships.
"If the lawyer-client is really [uptight] he is always going to want to see the file," says the Staten Island defense lawyer. "You have to make sure they have copies of everything and you need to take very good notes."
"You also need to tell them in writing not to do the dumb things that lawyers tend to do, like calling the opposing counsel," he adds.
Paul Peglow of Johnson, Sudenga, Latham, Peglow & O'Hare in Marshalltown, Iowa, says he often gives the lawyers he defends in malpractice actions copies of his legal research. He is certain that his clients doublecheck his work. If the roles were reversed, Peglow says he would do the same.
Peglow says he takes this extra step when representing fellow lawyers out of respect. "If you were a defendant you would want that type of treatment," he explains. "I take more time to keep them informed than I do with a lay client. But that is my choice."
No matter how well a lawyer tries to cover her behind, some attorney-clients will stoop to unexpected lows to try cover up their own mistakes.
One Chicago lawyer represented a fellow lawyer in the sale and purchase of two houses. The attorney-client had calculated that she could save a significant amount of money by renting back her home for several months from her buyers before she bought a new one. When the attorney-client finally purchased a new home, she left behind the other house in a less than desirable condition. The buyers of her home refused to release the security deposit because of its condition when she moved out.
The attorney-client waited several weeks to notify her lawyer of the problem and then blamed the security deposit snafu on a typographical error in the lease agreement that the Chicago lawyer had drafted. The Chicago lawyer says the attorney-client then threatened to sue for malpractice unless she paid the client the amount of the lost security deposit.
Los Angeles lawyer Carlos Lloreda, Jr., says attorney-clients can't always be trusted to follow their professional training when it comes to depositions.
"They have a tendency to talk too much in depositions. They do not act like they are lawyers," says Lloreda, who has a thriving professional malpractice and misconduct defense practice. "The question can be ‘Do you have a watch?' and they answer, ‘It's three o'clock.'"
DeLaRosa jokes that she has threatened to kick one of her attorney-clients under the table the next time he continues to let his mouth run at a deposition. "Attorneys are horrible at depositions. They just keep talking."
They also question their own lawyer's questions.
The Staten Island lawyer recalls one deposition where he was representing a fellow lawyer who had been involved in a car accident that appeared to be the lawyer's fault. The lawyer asked his client whether he had tried to control the car before the impact. "Instead of saying that he had tried to stop, he said, ‘Control? What does control mean?'"
Attorney-clients' behavior in front of juries often is no better. Robinson recalls having one attorney-client make his own objection from the witness stand. "Those instincts are sort of built-in," he says.
Those very same instincts have caused New Bern, North Carolina, solo practitioner Robert Bowers to swear off attorney-clients for good. Bowers says he once was called in the middle of the night to represent a fellow lawyer in a driving under the influence case. The other lawyer made 17 motions during the case. "Then he took the stand and convicted himself," Bowers says with a laugh. "He would not listen to me."
The attorney-client also was not content to let the judge sentence him. Bowers says the client told the judge that he could not revoke his driver's license because he needed to be able to drive to maintain his clients in the four counties where he practiced. Instead, the attorney-client suggested that, as a penalty for his conviction, the judge should restrict his driving to certain routes in the four-county area that he drove each day. The judge, incidentally, agreed to Bowers' client's demands.
The Root of All Evil
The Staten Island lawyer says that many attorney-clients' bizarre behaviors are due to concerns about money, especially when a lawyer has been sued for malpractice and is not insured. Uninsured lawyers are legendary in New York City courtrooms for firing their counsel mid-trial because of money concerns and then representing themselves for the duration.
"It is a hilarious scenario because it looks so ridiculous," he says. "They sit on the witness stand and turn their head to one side to ask the question and then turn it to the other side to answer it."
Because lawyers are so acutely aware of the costs of litigation, Christian Menard, a solo practitioner in Channel Islands Harbor, California, says he encourages his attorney-clients to do legal research on their own cases to help save money.
He says he appreciates the extra insight and analysis that attorney-clients bring to their own cases. "I encourage them to give me their input," he says. "I think most attorneys who represent other lawyers don't like that. They fight the input."
"Just because a lawyer is a party to a lawsuit does not mean that I am God. He can offer a lot of good insights," Menard adds.
But no matter how far a lawyer bends to help accommodate a fellow lawyer, they are not always the most appreciative of clients when it comes time to pay their bills.
A Scottsdale, Arizona, real estate lawyer is still seething over a fellow lawyer's refusal to pay a bill to a third lawyer to whom she had referred the attorney-client. The Scottsdale lawyer says she thought she was doing the lawyer a favor when she arranged representation for him in another state where he was buying a new and very lavish home.
The closing went smoothly and when the attorney-client received a bill, which the Scottsdale lawyer reports was very reasonable, he refused to pay the third lawyer's fees. Instead the attorney-client, who happened to be a partner at one of the country's largest and wealthiest law firms, sent his lawyer a check for $200. He has since refused to return any of his lawyer's phone calls inquiring about the rest of her fee.
Although many lawyers want to believe that fellow lawyers will act appropriately when it comes to paying their fees, in practice attorney-clients often are far from model clients. For that reason, many lawyers say that they treat their attorney-clients just like other clients and require them to sign retainer agreements.
"Once you've made the mistake once or twice, then you send every one of them a retainer and tell them that you will not go forward until it is signed," the Staten Island defense lawyer says.
Ravdin does not believe attorney-clients are offended by having to sign a retainer agreement if they understand that every client must sign one. Retainers do not mean that a lawyer cannot be trusted as a client, she says. Rather it is for the mutual protection of lawyer and client.
In smaller cities, where the legal community still is tightknit, Ravdin suspects that lawyers may have a different opinion.
What About Professional Courtesy?
According to Bowers, professional courtesy is the name of the game there among lawyers. "My father was an old country doctor. He told me that you don't charge other doctors, preachers and church members. So I don't charge other lawyers," he says.
Lisa Runquist, a lawyer in North Hollywood, California, who represents not-for-profit corporations, says professional courtesy is not commonly extended among lawyers in the Los Angeles area. Nonetheless, she is amazed by the number of lawyers who expect it.
"Every one of my clients expects a reduced fee because they are not-for-profits," she says. "I tell them that because the grocery does not give me free or discounted groceries when I tell them that I reduce my legal fees for other lawyers or not-for-profits, that I cannot give professional courtesy."
Ravdin, too, believes attorney-clients should not be given discounted fees simply because they are in the same profession. "It is ridiculous that other professionals think they should be given a discount. They should pay our fees so we can give discounts to people who really cannot afford to pay them."
She has never had a fellow lawyer not hire her because of her stand on professional courtesy. "If someone did tell me that my position was wrong, I would not want them to hire me," she says. "Those are the kind of lawyer-clients that people talk about. They are the ones making up front demands for freebies. That does not bode well for a professional relationship."