How many times have you received a letter from opposing counsel saying you said something you did not say? I receive several letters each week from opposing counsel which either tortures our conversation or outright misrepresents what was said altogether. This usually starts a letter war which wastes attorney time and client money. Of course the goal is to be able to waive the letter in court and convince a judge and gain unfair advantage in the case.
I have struggled with this issue for years. I have tried fighting fire with fire. I have engaged in the CYA letter war fighting furiously over what was said and what was not. I wonder what would happen if we dedicated ourselves to counseling other attorneys on professionalism in a non-threatening manner. Today, I dedicated myself to sending a private response an an example of which follows:
Greg: I have passed your email onto my client for review. However, I did want to send you this personal note. You included in your email the following statement:
“In our telephone conversation of yesterday, you represented to me that if we could document to you that [my client] had requested that your client register these domain names as an agent and paid for them, that you would advise your client to transfer the domain names immediately to [my client] .”
Obviously, I did not say this at all, although I agreed that it would be relevant information to know so I could advise my client. Creating the impression of non-existent agreements for the purpose of leverage is a common tactic in our profession. I receive slight exaggerations and overreaching quotes attributed to me each day. I’m certain you do as well. And to each of them, I am now responding privately and would encourage you to do the same in a non-demeaning, non-threatening way. I think we all tend to simply play by the rules which everyone else plays by after a while. We give up questioning whether the rules are appropriate or even helpful.
I also have come to believe that these tactics (perhaps they are not even tactics any more since no one pays much attention to them) have never really provided any real value to my client in my experience. I have come to believe that such ‘tools of the trade’ really do work to undermine the level of professionalism which we must all come again to expect from each other as lawyers and the profession as a whole. I have committed not to do it moving forward in my career. I won’t say I have never done it myself since that would be untrue. I spent years fighting fire with fire.
I have also come to believe that such habits also work against the interest of my client since they more often than not undermine the prospect of resolution, rather than further my client’s goals. To the extent such overreaching undermines the attorney client relationship of the opponent; the client is again disadvantaged in most instances. An exception might be when you know the opponent is being lied to by their own lawyer.
I look forward to working with you on this matter towards a resolution. I am recommitting (since at this point in the legal profession I’m sure this email sounds downright stupid) that the client’s goals must remain secondary to the legal profession itself which makes those goals possible. Granted, our profession has gone in directions which none of us should be proud (I’m sure you have your list as well).
Why this email? I am working with a group of top attorneys and other professionals nationally to reclaim the professional aspect of the legal business. Each of us has committed to creatively and constructively attempt get involved ‘on the ground’ in order to shift the system back towards its ideals (which I know we all would appreciate).
You can view the link here if it sounds interesting
If I received an email like a year ago, I’m sure my initial reaction would have been “F__ Off.” I hope you receive this email in the spirit in which it is offered. I have not copied my client or yours.
We must be proactive with our colleagues on the issue of professionalism if we are to restore professionalism to the practice of law. But we must find ways which have some prospect of obtaining results. I propose we all take responsibility to help our brother and sister professionals remember what the practice of law was supposed be. Too often, they are just playing by the wrong rules that others before them established. Click this link to hear my audio blog comments about this issue.