Ethics Counsel on www.OKbar.org

Social Ethics

By Travis Pickens

You are at the party and you see him coming, the guy across the room you barely know, but he knows you are a lawyer. He fixes his stare on you like a laser-guided missile on a Taliban safe house. If you break for the buffet table, he breaks with you. If you turn for the bar, he swivels like a point guard and is still with you. He’s walking faster and closing fast.

You know what’s about to happen is inevitable. You hopelessly shrug your shoulders and turn to face your pursuer. He grabs your arm and gets close, in your face, violating traditional customs of personal space. His breath stinks of nacho cheese and scotch. He has a question, a legal question, and he wants you, the lawyer, to stop mid-party, mid-fun away from work, and give him a specific legal opinion on his “unique” fact situation that takes him a full 10 minutes to relate – because he doesn’t know how to get to the point and thinks no point can be made without “a little background,” which of course includes encyclopedic detail, meaningless asides, a host of rationalizations, and most important of all, hints by inflection and curled lips as to how he wants you to come down.

He finishes a diatribe that makes Fidel Castro look meek, leans in even closer, and waits for you to say the words some clients prize above all others, “Gee, I can see why you did that! You are as right as you can be! I agree with you!” or the corollary, “Gee, I cannot believe that happened! That’s blatantly illegal and they can’t do that!”

Then, of course, if you do agree (a compelling option because you know it’s the only way to break free from this smothering bore in time to get another drink before the bar closes), this guy will tell everyone he sees and knows that “my lawyer agrees with me completely” and that whatever was “clearly legal” or “highly illegal,” the meaningless modifiers thrown in for effect. He will quote you in conversations and letters, each time making your advice more pointed, more urgent and more outraged.

And as quick as he came, he will back away from you, the lawyer, with a satisfied smile, followed by a couple of knowing nods, and then turn and leave without a “thank you,” any offer to make an appointment at your office, or even buy your lunch. You’ve just been a victim of lawyer abuse.

How do you avoid this personal tragedy? First, leave work at the office. Physicians and accountants do, we can, too. Second, when you are ensnared by this abuser, grab him by the arm, interrupt him and say something like, “Whoa, I can see this situation is upsetting to you, but I really can’t discuss this right now. This kind of [big deal] requires my absolute full attention. I will need to run a conflict check and visit with you at length in my office before I can discuss even the possibility of representing you. Why don’t you call my office Monday morning to make an appointment?”

You do not want the abuser to arguably become a client or potential client now, and you don’t want to learn any confidential information, triggering restrictions and duties, for several reasons. One, it’s a party, not an office conference. There will never be a fee. Two, whatever you utter will be frozen in the abuser’s memory as “The Truth” for ever more. You will never be able to modify, much less retract it. Three, you will open yourself up to a nuisance malpractice claim or bar complaint if the abuser acts on incomplete advice and it turns out there is more to the story (there will be) that would have changed whatever you said. Four, you will have to maintain the abuser’s confidences, which is something else you will be doing for nothing. Fifth, you might get to the office Monday and find out your damning opinion related to a client of another lawyer in your office.

Rule of Professional Conduct 1.18 (a) states that “[a] person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.” RPC 1.18 (b) says “[e]ven when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client.”

Therefore, you do not want to discuss representation or learn anything at the party. There is absolutely nothing to gain, and perhaps a lot to lose. But, you really don’t want to lose a potential client. The abuser may in fact have a legitimate issue and be willing to pay your full fee for the help. So, you are polite and invite him to set up a time at your office. If he is serious, he will. If not, you’ve wasted no time.

Then, you can go back to the party and have some fun.

About The Author

Travis Pickens serves as OBA Ethics Counsel. He is responsible for addressing ethics questions from OBA members, working with the Legal Ethics Advisory Panel, monitoring diversion program participants, teaching classes and writing articles. 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.12, 2009 -- Vol. 80 No. 33 

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