This article was originally written by Joanne Ross Wilder and published in 2010 in the Pennsylvania Family Lawyer. The technology section in this version has been added by James E. Mahood. The article is printed with permission.
This article offers a diagnostic tool for identifying some of the more prevalent afflictions that undermine the lawyer’s professionalism.
The lawyer struggling with the “Right Man’s Burden” is seriously handicapped. It isn’t easy to represent only those clients whose causes are completely just. In fact, it is difficult to negotiate, litigate, or even communicate in a civil manner with opposing counsel when your client is in the right. When the lawyer’s client is always right, it is practically impossible to consider any proposal short of unconditional surrender set forth by opposing counsel or even the court. When the client’s rightness evolves, as it inevitably does, into righteousness, the disease becomes terminal. The Cause becomes the Crusade, and there is no room to negotiate because to compromise would be to act against justice and truth, not to mention The American Way. The Right Man’s Burden is all the more onerous because when one’s client is completely right in all respects, the other side can, of course, be no better than a scoundrel and is often worse. And what kind of person would represent such scum?
The antidote for the Right Man’s Burden is for those afflicted to realize that the slogan “the customer is always right” may be appropriate in mercantile endeavors but is unprofessional when adopted by lawyers. A lawyer must learn the difference between being an advocate and being a mouthpiece.
The lawyer afflicted with “Phonaphobia” won’t answer your call until the third or fourth try, if then. If your call is returned, it will only be when there is a reasonable probability that you won’t be in, that is, for example, at lunch time or after six p.m. It is particularly frustrating to deal with these people because their letters often include an invitation to “call me if you don’t agree.” A variation is the popular “I will assume that this is understood unless I hear from you by 3 p.m. today.”
Phonaphobics tend to be plagued with multiple disorders. When every time you call you hear, “He’s away from his desk,” don’t you wonder what curious illness created this revulsion for furniture?
The antidote to Phonaphobia is to get the phobic’s home telephone number, and use it. Of course, you should call only when the phobic is certain to be at home—for example, at four a.m.
Lawyers plagued by “Rambosis” are unable to tell the difference between aggressive advocacy and bad manners. This malaise causes people to go extraordinary lengths to cause discomfort or inconvenience to opposing counsel in the mistaken belief that this somehow gives them an edge. They object when you go on talking when they interrupt you. They consider themselves clever when they serve notices too late in the day to be seen by the opposition, thereby meeting the technical time requirement but providing actual notice of one day less. They are jubilant when they succeed in getting the court to proceed ex parte when opposing counsel is late or when they can successfully delay the proceedings by appearing forty-five minutes late without prior notice. They constantly strive to protract the proceedings beyond all previous records by objecting to every question, answer, and ruling, usually in the form of a filibuster.
Lawyers who have contracted Rambosis thrive on canned interrogatories by the pound. One of my perennial favorites in divorce cases is the interrogatory that asks about eyewitnesses and details about the accident. This interrogatory has inspired a whole new dimension in hilarious and sometimes lurid responsive drafting.
Rambos’ weapon of choice is the fax machine. They will fax you a notice of presentation of an emergency motion at 4:45 p.m. Then they turn off their fax machines and turn on their answering machines. Of course they will be incommunicado until after the time scheduled for presentation of the motion. These folks define emergency as a chance to take advantage of the fact that you will probably be otherwise occupied.
Rambosis sufferers’ theory of negotiation is “my way or the highway.” Responding to offers or counter offers involves repeating the original position, only louder each time. Because you decline to negotiate against yourself, you are accused of failing to cooperate, which these lawyers define as capitulation by you.
In contrast to lawyers struggling under the Right Man’s Burden who over-identify with their clients, the lawyers afflicted with Rambosis sometimes forget that they are representing anyone but themselves. At the client’s expense, of course, they relive their own litigation, over and over. Your client is their ex, or the person who ran over their pet dog and only got probation, or some other character from their past with no redeeming characteristics. Rambosis-afflicted lawyers need to understand the difference between hardball and foul ball.
Have you ever noticed that the errors and omissions of some lawyers are always blamed on someone—or something—else? It’s never their fault that the brief is late or that your letter has gone unanswered for three weeks. No, the computer is down or the secretary quit or is lazy. Or the landlord failed to pay the utility bill and the answer got blown away.
Before the secretary bolted, your unanswered telephone messages were never relayed to the lawyer, thereby explaining why the unreturned phone calls were not the lawyer’s fault. The miscited cases aren’t the lawyers fault, either, but are due to “typos” or dereliction of the law clerk. The missed deadlines were the fault of the judge, who drafted the order with imprecision.
The postal service singles these folks out for particularly substandard service. Letters dated on Monday don’t get to you, for some mysterious reason, until the following Tuesday. They also have terrible memories, although their recall abilities are not uniformly deficient. What they can’t remember are the promises and representations made to you. Your representations to them, on the other hand, are indelibly imprinted in their minds, albeit not necessarily accurately.
Lawyers afflicted with the Chicken Pox are terrified of their clients. This fear manifests itself in varying degrees of paralysis. The disorder is easy to diagnose, as illustrated by the following case studies.
Lawyer A: “Why are your refusing to give me those financial statements when you know that the court is going to order you to turn them over? You are making everyone go to a lot of trouble and expense on such a simple discovery request!”
Lawyer B: “My client will be angry and will probably fire me if I give you the financial statements without a fight.”
Lawyer C: “Why would you put us to all of this trouble and expense to make such a dumb argument?!”
Lawyer D: “My client made me do it.”
These lawyer-client relationships will almost certainly get worse before they end, acrimoniously, of course, and probably on a most unsatisfactory note for all parties involved. Lawyers B and D have failed to behave in a professional manner and have, instead, permitted themselves to be intimidated by their clients. Sooner or later, the failure of the lawyers to delineate their professional responsibilities in their relationships with their clients will cause the clients to make demands that the lawyers believe to be improper or unethical and that mandate a refusal by the lawyer. The client, accustomed to having orders followed without question, will be outraged and will fire the lawyer, probably withholding payment and complaining about the lawyer’s ethics for good measure.
Lawyers afflicted with the Chicken Pox should be reminded of Sir Thomas More’s advice to Thomas Cromwell on advising Henry VIII: Do not tell the King what he can do, but, rather, tell the King what he ought to do. Cromwell failed to take this advice and lost his head as a result. More’s own execution was based on other grounds.
Professionalism requires that the lawyer explain the unique nature of the attorney- client relationship up front. It is the lawyer’s duty to supply sufficient information so that the client may make intelligent choices guided by the lawyer’s judgment.
The fax machine has been supplanted by endless emails and the smartphone— technologies of great convenience and much ill use. Abuse by email has supplanted abuse by fax machine. The only satisfaction in reading later in the morning an email penned at 3:15 a.m. is in knowing that certain fools stay up at night for such silliness. Unfortunately, immediate response is expected at 6 or 7 a.m. It has been three hours since they sent that email.
Email is also the subject of the abuse of “Reply All.” All of us who are on bar committees know of this. Sam is collecting registrations for the bar dinner to record who is attending and what are their dinner selections. None of us need to know, or should have to suffer knowing, in real time, who all will attend and what they want for dinner—but we will. Of real danger, of course, is when someone in the copy field replies to all and in the process divulges privileged or confidential information. It is a bad idea to cc your client on email to opposing counsel. Forward it separately. Also, did you have authority to disclose your client’s email address to opposing counsel?
Another problem in email is the “Reply” from an earlier email in the chain that, somehow, drops a part of the chain disadvantageous to the sender. Or folks use an old, wholly unrelated chain to capture your address, so now you have email on the current subject tied to old, unrelated matters.
Smartphones are like Alcibiades—love ’em, hate ’em, and can’t do without ’em. Put it away at home. It needs to recharge after a long day also. You do not need to see after-hours email or voice messages before you go to sleep. All will be there in the morning, not having disturbed your rest, and what can you do at 11 p.m. anyway, except disturb someone else.
Peace. fa