Ethics Counsel on www.OKbar.org

Dealing with Difficult Lawyers

By Travis Pickens

From a very small group of lawyers, there remains discourteous and annoying behavior in our profession, particularly litigation. The general coarsening of society does not help, but this sort of behavior has been around as long as there have been lawyers. Most of this behavior does not rise to the level of a disciplinary offense; it is simply unattractive, or burdensome to deal with.

This group of lawyers requires special consideration and handling. With experience, you learn how to deal with these types, but young lawyers can go through some fairly bad experiences until they learn how to effectively manage. This article is intended to give such lawyers a head start.

Annoying behavior can take many forms, along a spectrum of simple haughty behavior, to name-calling, to sexist remarks, to threatened violence. This article is not intended to address the obviously bad, sanctionable behavior, and disciplinary violations, but rather the far more common behavior that makes certain lawyers difficult with whom to deal.

Imposing enforceable rules strictly related to “civility” is a difficult matter. Not only does it seem inconsistent with our notion of a noble “profession,” but enforceability of such a code could prove difficult, for a variety of reasons. In addition to the aspirational “standards of professionalism” and “lawyers creed” adopted by the OBA Board of Governors, there appears to be ample general support for reasonable and civil litigation conduct in our Oklahoma Model Rules of Professional Conduct, for example:
  • Comment [1] to Rule 1.3 “Diligence” states: “ The lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.”

  • Comment [4] to the Rule 3.5 “Impartiality and Decorum of the Tribunal” states that a lawyer’s function is to provide “evidence and argument” so that a case may be legally decided. The comment goes on to state that “[r]efraining from abusive or obstreperous conduct is a corollary of the advocate’s right to speak on behalf of litigants.”

  • Rule 4.4 “Respect for Rights of Third Persons” states in paragraph (a) that “[i]in representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.”

  • Rule 8.4 “Misconduct” sets out a list of examples of professional misconduct that includes engaging in conduct “that is prejudicial to the administration of justice.”

There is often a difference between “difficult” behavior and a disciplinary rule violation, however. I have identified (nonscientifically, and with a bit of fun) several patterns of behavior that can be neatly catalogued into difficult, annoying “types,” and then offered some practical advice as to how to best deal with the behavior. (Please note: the following “types” are not based upon any single lawyer. Rather, they are a composite of many lawyers encountered over the years. These are generalizations, but are authentic representations of “difficult” behavior. Do not be offended if you see yourself in some of these, as they are done with a bit of humor. Most of us have earned these labels or worse at different times.)  

THE ‘PIT BULLY PUPPY DOG’

A. Sees a lawsuit as a “war,” and the opposing party as an “enemy” to be destroyed; this type is constantly and unnecessarily combative;

B. Has been enabled somewhat by the public, as this behavior fits a stereotype reinforced in books and movies;

C. Often acts one way with the adversary (pit bully), another way with the court (puppy dog);

D. This lawyer usually uses a lot of military terminology and reads Tom Clancy novels.

Best strategy: Document, document, document. Set boundaries. Look for ways to reveal behavior to the court. Make this person communicate in writing as it will likely be a much different communication than over the phone or in person. Show this lawyer no weakness as it will almost always lead to worse behavior, but do not overreact. The best strategy is not to “react” at all. Deflect the threats. Resist the temptation to go “Rambo” yourself. Leave the military jargon to the men and women that are risking their lives every day, dodging real bombs and bullets. This is litigation, not war.

THE ‘UNTREATED ISSUE-FUNCTIONER’

A. Has an issue, e.g. alcohol, anger, depression, that negatively impacts his or her personality, but either denies the problem, is enabled or refuses to address the problem. This person functions well enough on a day to day basis, but impacts negatively most everyone he or she encounters;

B. Usually practices as a solo, or with one or two understanding or enabling others;

C. Will not tolerate accountability;

D. At the right time, you might consider encouraging this person to get some help. Referrals to LHL are confidential.     

Best strategy: See “Pit Bully Puppy Dog” strategy. Look for patterns in behavior and use them to your advantage, e.g. Does this lawyer often not agree to reasonable requests? Find a way to bring that to the judge’s attention. These lawyers are not typically malicious, but rather suffer from a significant issue that is not being addressed and that has a direct negative impact on their behavior, and you. You should not indulge them at the expense of your client, but your response should be tempered, and balanced to some degree with compassionate tolerance and perhaps help at some later point (e.g. a referral to Lawyers Helping Lawyers).

THE ‘DIPLOMAT’

A. You may never know the whole truth. This lawyer uses multiple levels of communication and is a cunning manipulator.

B. Avoid predicting the future for your client, as there will be many surprises.

C. There is usually a multi-leveled agenda being worked by this lawyer.

D. Overuses the phrase “my friend.”

Best strategy: Do your homework and research to determine the real goal of this constant chameleon. It will usually be based upon pure self-interest, and less so on doing “justice” or “win/win” solutions. Know that the lawyer will fear looking bad more than angering his or her client. Use that to your advantage, by repeatedly pointing out weaknesses in their case and the likelihood of a bad result. Most of all, know there is no deal unless and until that deal is in writing.

THE ‘MISREPRESENTING LETTER WRITER’

A. Usually writes the letter or email as a follow-up to a conversation or a personal encounter;

B. If the discussion included A, B and C, the writer will write a letter with A, B, C, and add D, or will spin A, B and C, into X, Y and Z.

C. Writes letters after every conversation or encounter with you, and is building a “record” to be used against you later;

D. Begins every letter with the phrase, “This letter confirms that” or “we agreed that” and ends with something like, “if you do not agree with all of the above, please contact me within fifteen minutes of your receipt of this letter.” 

Best strategy: Go 100 percent “paper” yourself. In other words, eliminate the opportunities for the misrepresenter to mischaracterize phone calls and personal conferences. If appropriate, use misrepresenting letters as attachments to discovery motions or briefs. Reply and correct every misrepresentation. Look for other ways to eliminate this lawyer’s serial misrepresentations, like working out a master discovery plan at the beginning.

THE ‘OPIE TAYLOR MEETS MACHIAVELLI’

A. “Opie” is a local that uses all the advantages of his/her turf.

B. Opie is almost always disarming and easy-going, but the wheels are constantly turning. He/she knows the judge and influential people in town, well, and what they are likely to do in almost every situation. There is nothing corrupt about Opie; he or she just has a great advantage.

C. Opie is often a person of influence in town — well-liked, respected and sometimes feared, and usually represents a local resident or interest; assume the odds will favor Opie in tight cases, although there are always some folks in town that resent Opie’s influence;

D. Opie is not always a lawyer in a small community or town; larger cities have “Opies,” too. They are just usually not as obvious until you do some checking.

Best strategy: If against Opie, then do some research and hire the local “mongoose” to be your local lawyer (there is always a competing lawyer, because a good business model requires an able adversary. But you may have to go to a different town or city.) Otherwise, be the one to hire “Opie” when you go to that turf.  

THE ‘DENTIST’

A. Has an “assembly line” type practice with multiple layers of subordinates;

B. Will not take a personal interest in your case until it is close to a major deadline or the trial;

C. Uses several subordinates to “run” their cases, sometimes billing for the time of their staff;

D. Dealing with this lawyer is somewhat akin to going to some dentists — you spend 99 percent of your time with the staff. They may have a superior business model but it can be frustrating for the opposing counsel.

Best strategy: Prepare your client properly for the opposing lawyer’s utilization of this approach. Either insist on personal communication with your peer on the other side, or “match” your responses by utilizing your own staff. Assume this matter will not resolve until the time just before trial. Truthfully, some of these lawyers’ assistants are far easier to deal with than the lawyer, so look for the advantages with this. You can rely on them to pass on messages and requests without enduring the high level of nonsense or antagonism you might otherwise encounter with the attorney.

THE ‘WIZARD OF OZ’

A. Considers him/herself a “Titan of the Legal Community”;

B. Surrounds him/herself with sycophants, and all the trappings of power and influence;

C. Easily affronted, and will go “Henry VIII” to direct attempts to challenge, or worse, humiliate;

D. Is extraordinarily image conscious and will insist upon speaking or dealing with the highest ranking lawyer on the case about the most trivial of matters. Often a Francophile;

Best strategy: Use the wizard’s vanity to your advantage. Mild flattery and toleration of harmless megalomania can help you resolve the matter on good terms. After all, some of these lawyers actually live up to their self image. But be careful, do not overly defer to these types as that will be interpreted by the wizard as abject submission; it will destroy any hope of a favorable settlement. The wizard always has an able associate or junior attorney that will likely be your principal contact. That person is usually calm and cooperative, allowing the wizard to appear remote and terrifying. Do your best to be on good terms with this associate as he or she is your best chance at smooth communications, and cooperation.

THE ‘TRAPEZOID HOLIST’

A. The prickly, unpredictable agency lawyer/bureaucrat who arbitrarily wields power over you and your client’s matter;

B. Will approve only the “trapezoid” and no other shape, but will not tell you beforehand;

C. Has little patience for questions, or innovative solutions. They do not exercise influence or power in other ways, so they work this fragment of control for all it’s worth.

Best strategy: Fortunately, this lawyer is an abberation and appears to be on the decline. Study this type and know the deal beforehand. An attitude of deference, maybe awe, is often helpful. Try to avoid assignment to the holist, or look for ways to end-run or go up the ladder. In the alternative, accept your fate and submit. Become a trapezoid. Managing client expectations, as always, is crucial with this type.

THE ‘RELUCTANT ASSOCIATE’

A. Usually works for the “Pit Bully Puppy Dog,” the “Wizard of Oz,” or “The Dentist”;

B. Has no authority, and must “check” with their superior on every matter;

C. Know there is no deal unless and until there is something in writing. Also know, the reluctant associate will burn you time and again if you do not deal with him or her properly.

D. Is often a twin or close relative to the “Misrepresenting Letter Writer.”

Best Strategy: Move up the ladder. Insist on speaking to the supervising lawyer. An alternative strategy is to aggressively deal with the associate and not accommodate unreasonable delays, related frustrations and flip-flops. Document everything with copies to the supervising lawyer. The reluctant associate fears angering the supervising lawyer more than angering you. You can use that to your advantage by bringing clear misrepresentations to the attention of the misrepresenter’s supervising lawyer. They will not be pleased (even though     they might not let on to you) and the behavior will likely stop.

THE ‘MUAMMAR GADDAFI’

A. This lawyer sees his/her talent as far more than it actually is.

B. Operates in a cloud of self-delusion, without commensurate physical evidence of skill or success;

C. Makes all the demands of the “Wizard of Oz,” but has nothing with which to back it up;

D. These types are so pathetic in their self-deception, that one must be careful not to be momentarily disarmed, or worse, charmed.

Best Strategy: Avoid moderate flattery which is effective with the “Wizard of Oz,” but will absolutely ruin any chance of success with these “Muammars.” These types will eagerly take it as affirmation of what they secretly question themselves. You will have created a monster, and your chances of a favorable settlement will evaporate.

ABOUT THE AUTHOR

Travis Pickens serves as OBA ethics counsel. He is responsible for addressing ethics questions from OBA members, monitoring Diversion Program participants, teaching classes, speaking at continuing education programs and other law-related seminars and writing articles for The Oklahoma Bar Journal and other publications. A former litigator in private practice, he has served as co-chair of the Work/Life Balance Committee and as vice-chair of the Lawyers Helping Lawyers Assistance Program Committee.

Originally published in the Oklahoma Bar Journal -- Dec.10, 2011 -- Volume 82, No. 33

Travis Pickens is the OBA Ethics Counsel. He can be reached at ethics@okbar.org