There are some mysterious rituals that we lawyers carry out, but rarely explain to clients. There are good reasons for some of the odd things that we do. You may have noticed your legal counsel doing the following:
- writing letters and making phone calls only to the other party’s lawyer, never to the other party directly
- refraining from telling the other side’s lawyer to take a flying leap, even when discussions are very acrimonious
- requiring a waiver and consent to be signed in a financing when he/she is acting for both you and the bank, or declining to act for both sides of a deal
These behaviours are actually Rules of Conduct which are mandated by The Law Society of Upper Canada, the organization which governs the legal profession for the protection of the public (not a lawyer lobby group).
I will briefly analyze each of the three rules.
A. “Going Behind”
A solicitor must never contact, in writing, by phone or in person, a party in a matter where that party has hired a lawyer. In other words, lawyers must talk only to lawyers, and clients must talk to clients. If a client calls the other party’s lawyer directly, such lawyer should decline to speak to such party without his/her lawyer.
Over the last five years, I have observed a decreasing respect for this rule. Some parties, like financial institutions, deal with the law and lawyers so much they feel they are lawyers. Some people think this rule is simply another scheme created by lawyers to protect their domaine and drive up fees.
Yet, there is a rational basis for the rule against “going behind” the other party’s lawyer. By hiring a lawyer, a party is recognizing a need for legal advice to protect their interest. If the lawyer for the other side calls up that party directly, the calling lawyer is “going behind” the recipient party’s lawyer and such party’s wish to be.
Believe me, in complex legal matters, or even a house deal for that matter, a few poorly chosen words uttered during a phone call can constitute an unintended consent, waiver, estoppel or amendment. Theoretically at least, your lawyer should know better than to make a legally significant slip of words in talking to another lawyer. The average non-lawyer cannot be expected to be as wary in a seemingly friendly conversation intended to simply “move things along”.
There are a couple of practical exceptions to this rule:
when the other party insists on not hiring their own lawyer, and recognizes that you are not acting for them; and
if the represented party specifically consents to the communication from the other lawyer directly (perhaps his lawyer is on holidays, or it is a trivial item, like getting an address.
In the first situation, I will often suggest that my client deal with the other party directly, instead of me doing so, to keep the playing field level.
The second situation is dicey, because it is so darn easy to talk directly to the other side, instead of playing telephone tag with the other lawyer. It seems harmless, and some lawyers are unpleasant to deal with: but the temptation must be resisted.
Courteousness to Other Counsel
It is a rule (!) that lawyers must be courteous to each other, even if the parties are fighting like junk yard dogs. This rule, like the first one about “going behind”, is intended to keep legal affairs on a civil footing among lawyers. Quaint notion, yet surely a desirable one.
Most lawyers put a high value on their independence. Indeed, such independence is valuable to the client also: good counsel comes from objective advice, not from sycophancy. Lawyers are expensive cheerleaders.
If the courts and business dealings dissolve into acrimony and violence, then it will be impossible to settle disputes and make deals. Many a time I have closed transactions, and made settlements where the parties could not stand to be in the same room together. That is an important part of my job as a business attorney.
So, don’t expect your counsel to swear at the other side, hang up the phone or otherwise act in an extreme fashion. If your lawyer frequently does so, it is a demonstration of their ineffectiveness, and this hurts your interests. Lawyers who rant and rave are avoided, or patronized by others, but rarely do they get better results for their clients.
Conflict, What Conflict?
Raising a conflict of interest is typically a no – win situation for a solicitor, unless the problem is carefully explained. Parties often ask one lawyer to act for both of them, expecting to save fees and enhance convenience. They assume that no harm can be suffered, as it is just a matter of “putting the paper together”.
I don’t think so.
If the lawyer does his/her job properly, that is, in accordance with the rules, it can cost more to have one lawyer act for both sides of a transaction. And there are other major risks and disadvantages, as well.
First, the lawyer must advise each party of the potential for a conflict in the matter. Then, the consent of each party must be obtained. Next, the lawyer must advise each party that there can be no secrets on this file: all information must be shared by both parties on a timely basis. Finally, the lawyer must advise both parties that if a dispute arises, both parties must be sent out of the office due to the conflict and exchange of information.
This requirement is ignored at the lawyer’s severe peril, because if anything goes wrong, and it turns out the lawyer forgot to tell the other party key information, then, bingo! the lawyer and his/her insurer end up paying.
Normally, the lawyer in a conflict role is closer to one party than the other, and it very difficult to ensure a full exchange of information. I have seen more than a few files where the lawyer has subconsciously favoured his long standing client over the interest of the other party.
I have participated in acting for the Law Society insurance people in defending lawyers caught up in a conflict situations. I can tell you in no uncertain terms that there is a strong presumption of responsibility on the lawyer’s part when things go wrong in a conflict situation.
Conflicts can cause a lot of pain, in exchange for negligible benefits for the lawyer or the client.
I hope this article helps to explain the sometimes inexplicable behaviour of lawyers we aren’t all crazy!