Clients Calling the Shots? A Legal Ethics Counsel’s Perspective

Headquarters for the District of Columbia Bar ...

Headquarters for the District of Columbia Bar Association and FTI. (Photo credit: Wikipedia)

Every month, one member of the District of Columbia Bar’s Legal Ethics Counsel or Bar Counsel, writes an article in the Washington Lawyer (the District of Columbia Bar journal) posing an ethical issue and providing guidance to lawyers how to deal with it.   In the March 2013 magazine, Legal Ethics Counsel Saul Jay Singer wrote an article titled When  Does the Client Get to Call the Shots?  The ethical issue Mr. Singer poses takes place at a fictional firm’s litigation department meeting.  In the meeting, Alex Associate presents an update on Vanessa Victim’s wrongful termination/sexual discrimination suit against firm client Carnivore Corporation.  After Peter Partner refers to Bertha Boardmember, Carnivore’s representative, as the “client from hell,” Alex Associate reports that:

From the very outset of the representation, Bertha Boardmember, Carnivore’s duly authorized constituent in the case, has been micromanaging us and bitterly criticizing, impeding, and prohibiting various actions we deem crucial to the case.

Alex Associate goes on to describe Bertha Boardmember’s demands.  Her first demand – that Alex file a motion to dismiss the complaint, even though it would be denied, in order to be first to present Carnivore’s theory of the case and influence the court.  She then capped the firm’s discovery budget to stop the firm from running up the bills.  According to Alex Associate, this resulted in Carnivore’s production of an email written by Vanessa Victim’s supervisor, Barry Buckshot, admitting he wrongfully terminated her because she was female and an “anti-gun zealot.”  Alex Associate further reports that Bertha Boardmember was furious that the email was produced to and used by Vanessa Victim’s lawyer (Lord Voldemort) in a motion for judgment, and that Bertha Boardmember made a list of demands of the firm in response:

“First, you will call Voldemort and threaten to file a Bar complaint against him unless he withdraws the motion for summary judgment. Second, you will argue in opposition that Carnivore has no legal liability because Buckshot had a legitimate reason to terminate Vanessa’s employment: He fired her not because she is female but, rather, because she ignored his repeated requests to cease the relentless proselytizing of her anti–gun position at the office, which upset many employees and which interfered with accounting department operations.  Alternatively, you will characterize Buckshot as a “gun nut” and pin the entire matter on him as a supervisor who, unknown to Carnivore, acted outside the scope of his employment in firing Victim.” Bertha concluded by threatening to file a Bar complaint against us if we did not follow her instructions precisely.

At the conclusion of this hypothetical, Mr. Singer sets forth his analysis of the ethical issues posed, drawing on the DC ethics rules.

Of interest to legal consumers is Mr. Singer’s practice tip to lawyers reading the article:

Finally, an important practice tip in this tough economy and challenging market for lawyers and law firms: Though establishing a client base and facilitating positive cash flow may be your foremost concerns, there is no reason to tolerate abuse from a client. In most cases, a lawyer may voluntarily withdraw from a representation, and I can virtually guarantee that you will rue the day when you undertake to represent a client like Bertha. In some cases, both expediency and common sense dictate that you get out … while you still can!

While presumably there are clients as extreme as Bertha Boardmember, perhaps the ultimate message from a legal ethics/bar counsel to lawyers should not be validation of self-interest as a foremost concern or advocating withdrawal from representing difficult clients often leaving them in the lurch.  Rather perhaps legal ethics/bar counsels should use their position and influence to educate lawyers how to deal with difficult clients — by effectively communicating as a way to understand the root cause of the difficulty and possibly resolve it, or as a way to avoid the difficulty all together.

You’ve got options.  The Center for Legal Practice Reform can help you navigate the attorney/client relationship and level the playing field.  Call LPR today for a free consultation – (301) 351-7970. 

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