From the Multnomah Lawyer: The Corner Office | Professionalism
It is easy to abide by a commitment to professionalism when counsel on the other side shares that commitment. But what do we do when faced with unprofessional, even abusive, behavior? How do we maintain our professionalism?
At some point in your career - perhaps, unfortunately, at many points - you will encounter an unprofessional lawyer. We think mainly of such attorneys as litigation opponents, but unprofessional behavior can occur in any practice context. There are some usual suspects when it comes to unprofessional behavior.
There is the bully, who attacks you at every turn and believes that every issue is a battle. This lawyer will condescend and belittle you, and may even personally insult you or your client.
There is the lawyer whose default answer in every circumstance is to disagree with you, even if your proposal may benefit his or her client. Such lawyers are incapable of making concessions, often because they think that conceding a point is a sign of weakness.
And there is, for lack of a better word, the liar. This is the lawyer who misrepresents the facts or the law to the court. This is the lawyer who follows up your phone calls with an email or letter mischaracterizing what was said. This is the lawyer who conveniently forgets commitments made to meet a deadline.
Although we cannot control how other lawyers behave, we can control how we respond to such tactics. Here are some suggestions:
In addition to being inconsistent with professionalism, responding in kind is not effective. While it is difficult to resist and can be exhilarating to jump into such a battle, ignore the impulse. The difficult lawyer is trying to distract you from effectively representing your client. No matter what that lawyer does, stay focused on your objective. Let the difficult lawyer waste time and money on hostile and unproductive acts. As the saying goes, never wrestle with a pig - you both get dirty and the pig likes it.
Remember to stay cool. The difficult lawyer is trying to rattle your cage and throw you off track. These lawyers love it when you take the bait because now you are on their playing field. Stay civil at all times. Continue to extend courtesies as you would to any other lawyer. If the lawyer will not cooperate in setting a deposition, for example, send a nice letter and give a reasonable time to respond. Advise that if he does not respond in a timely manner, you will schedule the deposition anyway, and follow through. When these lawyers make lengthy statements or interruptions during depositions, sometimes at high volume, wait for them to stop, ask them if they are through, and then go on as if the interruption had never occurred.
If you are dealing with a difficult lawyer, there is a good chance that at some point the court may be asked to intervene. Therefore, document your attempts at cooperation. Remember, whatever you put in writing is likely to be read by a judge, so keep it professional. As an aside, I resolved early in my career to become even more cordial when corresponding with difficult opponents. I confess that I enjoyed the fact that this seemed to irritate them considerably.
Remember that all of the time you spend arguing with or focusing on the difficult lawyer is time spent on issues that, in the end, will not likely win the case or close the transaction. If you are before the court because of your opponent’s unprofessional behavior you may be tempted to tell the judge everything the other lawyer is doing to obstruct the case. Resist the temptation. Inevitably, the court will get tired of all the squabbling. The judge will have neither time nor patience to figure out who is doing what and may take a dim view of everyone in the case, including you.
Along with maintaining your focus, it is important to set limits. Stick by the rules and demonstrate you know what you are doing. The rules are boundaries that help contain very difficult opposing attorneys. Tell them what you are going to do and then just do it. No gamesmanship. You must follow through to be taken seriously.
Remaining professional in the face of misbehavior is not weakness. As Sun Tzu wrote: “It is more important to out-think your enemy than to out-fight him.” In fact, remaining professional and focused on the real objective is the best way to achieve your client’s goals. Keep that in mind when an unprofessional lawyer tries to push your buttons.
The Corner Office is a recurring feature of the Multnomah Lawyer and is intended to promote the discussion of professionalism taking place among lawyers in our community and elsewhere. While The Corner Office cannot promise to answer every question submitted, its intent is to respond to questions that raise interesting professionalism concerns and issues. Please send your questions to mba@mbabar.org and indicate that you would like The Corner Office to answer your question. Questions may be submitted anonymously.
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