YourABA: December 2013
YourABA December 2013 Masthead

How to handle a ‘Rambo’ attorney

Dealing with legal bullies is never pleasant. In an American Bar Association Sound Advice podcast, Mike Downey, a litigation partner at Armstrong Teasdale LLP in St. Louis, offered steps to best handle what he calls "Rambo" attorneys.

The nature of misconduct with such lawyers occurs in a wide variety of ways, said Downey, who is chair of the ABA Law Practice Division. Examples include attorneys refusing to respond to discovery, engaging in harassing behavior, criticizing the lawyer or the lawyer's client during depositions, hearings and other proceedings, and much more.

"These types of circumstances can obviously be very frustrating for a lawyer and create a lot of headaches and problems," Downey said. "Often, I find that lawyers who are dealing with these types of people will become somewhat fixated on them and will really become very frustrated by them. They increase the stress of the practice, they increase the anxiety level, and frankly, what they also do is cause a lawyer to lose track of what they are really trying to accomplish. It becomes a battle where one lawyer feels pitted against the other lawyer or becomes so determined to show the other lawyer up or get the other lawyer in trouble that they lose track of what's going on."

Meanwhile, courts dislike getting involved in fights between lawyers, Downey said. "They don't really feel very good about sanctioning people," he said. "And I've had cases where I've felt like we had done everything right and the other side had made very egregious errors — in one case, refusing to respond to discovery for almost a year … and the court's response was, nobody is really behaving. I do think that it's a natural inclination that courts rarely believe that one person alone is the source of all the problems. With this in mind, it's important to deal with such bullying or Rambo behavior by really being careful."

  1. Do what you can to head off problems early.
    "It's good if you're involved in a case and you've got a new lawyer on the other side to find out what that lawyer is like from talking with people," Downey said. "A lot of times, if there is someone who is a problem lawyer, they've been a problem lawyer in a lot of contexts, and you can often find out from these people that this is someone you need to be careful of.

    "The other thing I think is a good idea is to make an initial contact with the person when there's nothing hanging over your head," he added. "If you're the plaintiff's counsel and you file a lawsuit and you get a response back from the other side, or alternatively, if you're the defense counsel and you're asked to represent someone on a lawsuit, it's often good to reach out at that time. Make a friendly call: Say, 'Hey, I wanted to let you know I've been contacted to represent this party in this case. We appreciate you getting your answer on file.' Or, 'We think we'll have our answer on file in a few days. Can you tell me a little about the case?' And start to build rapport then. Then if you need to call them and ask them for a favor or if there is some problem later, you've started to build a relationship you can rely upon."

  2. Know the relevant rules.
    Sometimes when lawyers engage in bullying behavior, they are violating particular rules, including the ABA Rules of Professional Conduct. For example, Rule 3.1 generally prohibits a lawyer from filing frivolous proceedings. Rule 3.2 requires a lawyer with some limitations to seek to reasonably expedite a matter as long as that's consistent with the client's objectives. Rule 3.3 is a duty of candor to the tribunal. Rule 3.4 relates to destroying and concealing evidence. Rule 4.2 relates to making sure that opposing counsel doesn't contact people who are protected by you because you have an attorney-client relationship with them.

    "All of these rules can be very important," Downey said. "It's important to realize, though, that there are some exceptions. So you need to make sure you know what the rules say and what the limits are, and particularly if you think someone has done something wrong, you often need to check and make sure they really have engaged in the violation you think before pressing forward."

  3. Once you determine that there has been some sort of wrongdoing, show, don't tell, what the wrongdoing is.
    "Too often, I've seen pleadings filed where someone has frustrated opposing counsel, and they basically will say, 'Opposing counsel is a scoundrel, they're a dog, they've filed these horrible things … and the court should sanction it,'" Downey said. "The tough thing about all that is, although I've given you my opinion, I haven't actually told you anything the other person did wrong. It is far better to be able to show what was wrong."

    The most powerful statement that Downey said he has seen on this is someone who filed a brief attacking someone else's pleading as misleading. "What they did was set down the language in the brief in one column and right next to it in another column showed what the case actually talked about," he said. "So it was quite evident that the person had made very selective edits to the case to mislead someone."

  4. Give warnings.
    If you are in a situation where you think you're headed toward litigation by sanction or a lot of fighting, notify your firm, Downey said. "Let senior lawyers or other partners in your firm know that you're dealing with someone very difficult," he said. "They may have a relationship with this person and be able to smooth things over. They also may be able to help provide guidance."

    Also, it's good to warn your client if, for example, you're going to be accused of a lot of misconduct that you think is undeserved, Downey said. "If the first time the client hears it is out of the mouth of the other attorney, they may believe you have done something wrong," he said. "Also, if there's misconduct going on or you know that this is someone who will call your client or set up hearings that are inappropriate, it's also good to let your client know and let them know that you have a plan. Sometimes clients, when they see the other side being very aggressive, being very Rambo-like, will believe that their own attorney is not doing a good job. If you can say to them, 'We know this judge doesn't like when people are so belligerent. We think our opposing counsel is really hurting his case,' … a lot of times, this will help the client."

For four more steps to dealing with Rambo lawyers, listen to the Sound Advice podcast, sponsored by the ABA Section of Litigation.

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