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A few days ago, I published a piece about how lawyers often need to do more to protect attorney-client communications. Upon reflection, lawyers do not merely need to do more to protect discussions between lawyers and clients but also need to protect other communications and information as well. Indeed, whenever a lawyer is in court or in any other public place, they should assume that people can hear what is being said and act accordingly. Many times in my career I have witnessed lawyers having sensitive conversations with different stakeholders to a deal in ways that would hurt a client if an adversary had knowledge of the communications.
I once represented one of two defendants in a lawsuit. Another lawyer represented the other defendant. The defendants had informally agreed to team up so that both I and the other lawyer had a better chance at defending them against the plaintiff’s claims. One time, we were due in court to argue a given motion. I had never met any of the lawyers on this case before, and I arrived in court early, and sat in the courtroom with all of the other lawyers waiting to have their cases called by the judge.
Some time later, I overheard two of the lawyers talking about resolving a given case. It didn’t take long for me to realize that they were talking about my case, and the lawyers represented plaintiff and the other defendant in the matter. To my surprise, instead of wishing to mount a joint defense against the plaintiff, the co-defendant’s lawyer was talking with plaintiff’s lawyer about cutting a separate settlement with the plaintiff that would only relate to claims against one of the defendants. When the attorneys realized that I was among the lawyers in the courtroom, and that I overheard everything they said, they were extremely embarrassed and tried to play off the incident as not being a big deal. However, my client was not too pleased with the co-defendant’s desire to cut a separate settlement in the case, and the lawyers’ recklessness made it more difficult to reach a mutually agreeable resolution in that matter.
Sometimes, lawyers should be more careful when they speak badly about other attorneys they are dealing with on a given matter. As many legal professionals already know from firsthand experience, attorneys and clients often talk badly about one another. There is much friction between stakeholders in the legal arena, and matters are usually resolved by neither party getting everything they want. It is natural for people to take out their frustrations about the legal process, counsel fees, delays in the legal system, and other matters on the people involved with a deal.
On multiple occasions, I have witnessed attorneys saying disrespectful things about other lawyers, and the subject of the comments hearing everything that was said. One situation especially comes to mind. I was once at a deposition that involved dozens of defense lawyers and one plaintiff’s counsel. The deposition had been delayed due to scheduling difficulties, and this resulted in the defense lawyers remaining at the deposition site for a longer period.
One of the lawyers started saying rude things about the plaintiff’s attorney and even mimicked that lawyer’s voice. As if we were on a television show, the plaintiff’s counsel entered the room, and it was clear that this attorney heard everything that was said. This made it extremely difficult to continue the deposition on cordial terms, and I do not think that the relationship between the lawyers involved in the ordeal ever healed, which impacted their ability to achieve results for their clients.
Sometimes, disrespectful comments about counsel do not need to be said in person to have a negative impact. One time, I was on an email chain for a number of lawyers involved in a given matter. One of the lawyers typed out an email to the group that was derisive of one of the other lawyers. It was clear that this email was not intended for everyone on the email chain, including the lawyer who was the subject of the criticism. The lawyer who had the “reply all” accident tried to backtrack his comments, but the damage was already done, and this hurt his connection with a colleague on a matter.
Of course, the best course of action is to not speak ill of another legal practitioner, but we all know that in the real world, this is a difficult ask. However, lawyers should at least be more discreet to avoid experiencing the fallout of accidental communication.
Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothman.law.
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