From time to time one hears about or experiences something that is wrong – professionally wrong. Everyone will have their own examples. Here are four examples off the top of my head – real examples:
1. At the beginning of a deposition, on the record, one lawyer angrily and repeatedly calls the other lawyer a liar. The angry lawyer is not an experienced trial lawyer, not really a trial lawyer at all. He has seemed “over his head” and stressed out frequently during the course of the case.
2. A lawyer arrives very late for an argument. He is disheveled and disorganized. He has difficulty finding the papers he needs and his argument makes little sense.
3. Whenever confronted with a certain factual situation, a Judge says in open court that “the law” does not permit X. The Judge is mistaken. Many lawyers know he is mistaken. Nothing is done until a lawyer, who has a close relationship with a different Judge, one in authority, makes a private phone call.
4. In a personal injury case, there are repeated instances of certain medical reports being omitted from the medical reports that are disclosed. Each omitted report undercuts the claim being made by the party whose lawyer is responsible for the disclosure. Each time the lawyer says his “office” made a mistake. If the other party had not deposed the doctors whose reports were omitted, the “accidental (?)” failure to disclose would have never come to light. Nothing was done about the repeated mistakes.
Over the past ten years as Vice Chair and now Chair of the Ethics Committee I have heard lawyers tell stories like the ones described above. Measured against all the calls I have fielded over that time, these types of calls represent a very small percentage of the total. But few in number they may be, they are nonetheless troublesome. What can be done? What should be done?
I am not sure. I do not think the choice is limited to either doing nothing or filing a formal complaint. And while I do not have a “one size fits all” solution, I do think part of the solution is to “talk about it” privately preferably directly to the people involved. I am not suggesting making a threat. I am suggesting telling the “other” lawyer (or Judge) what one has observed and the impression that his perceived conduct has made. Give the other lawyer an opportunity to explain his side of things. Shake hands and go on to the next thing. Might this be difficult? Certainly. The “other lawyer” may feel threatened and become aggressively defensive. The lawyer telling the story may be flat wrong. The “truth” may lie somewhere in between.
If such exchanges were understood as being for the good of the profession – not intended to be accusations or threats but rather attempts to clear the air and to preserve (maybe even create) mutual respect – then perhaps we could learn from each other; perhaps we could identify common ground – respect for the practice of law – that would enable us to have such conversations without viewing them as personal attacks. For that to happen, there needs to be a level of professional trust and respect so that the conversation is seen as a process of critique – the kind of process artists use to evaluate each others work. The key is to realize that the critique is of the work of art or of the performance toward the end of improving it. Of course the tendency of the artist whose work is being critiqued is to take the criticism personally in the beginning. But critiquing is not simply criticism with the phrase “don’t take it personally” attached to it. It is a technique designed to focus attention on the work of art or on the performance not on the artist or actor.
Shrugging one’s shoulders and doing nothing will accomplish nothing other than perpetuating cynicism. We can do better than that.