In my previous blog, I discussed lawyers with certain traits to avoid – including instability and lack of investigation into your case. Here, I will talk about a situation that involved a lawyer with some of those traits. I ask that when you see interactions among lawyers, especially your own, to keep this situation and the sides that were taken in mind.
The case which brought us all together was an emotional one and involved an infant suffering from a very serious injury.
As is commonly the case where a child suffers such a serious injury, the county office of Children, Youth, and Families (“CYF”) started an investigation into whether the family conditions were safe for the children. The CYF case involved an investigation of both parents as potential risks of harm or abuse to the children.
In addition to being one of the subjects of the CYF investigation, my client, the mother of the injured child, was criminally charged on the allegation that she caused or was otherwise at criminal fault for the injuries.
The father of the injured child was not criminally charged, and, in fact, he is the person who hired me to defend the mother. Before I was hired by the father, I had multiple meetings with him to discuss the facts of the case, his concerns, potential defense strategies, and the like. I presume that these meetings were also used by the father to assess my intelligence, skill, and temperament.
On the day in question, we were all down at family court. The mother was still in jail awaiting trial on the criminal charges, but the father was present, along with the oldest daughter of the family (3 years old). We had information that CYF was going to drop the family law case against both parents, which we were all pretty happy about.
While we were waiting for our case to be called, the father was speaking with a social worker about certain details of the still ongoing criminal case against the mother.
In particular, he was talking about my ongoing efforts to get certain medical records not provided in discovery relating to the quality of medical care received by the injured child. Speaking to the social worker, I offered part of a strategy to have the father order the medical records himself under the belief that he could obtain the medical records at a considerably lower cost than I could.
At this point my colleague, the father’s lawyer for the Family/CYF case, interjected. She didn’t want him her client, signing anything. She indicated a concern that signing for medical records would expose him to a significant cost. Then significant agitation and anger manifested in her tone and volume. It went something like this:
Colleague: In fact, don’t talk to my client. You talk to me, not my client. You know of my representation and you know better than that.
Me: What is the purpose of this posturing?
Colleague: You are trying to get him to sign for medicals which will cost him thousands of dollars and there are other ways to get those records – we do it all the time. These people don’t have a lot of money. You have already been paid for this case, handsomely, I might add, and I’m telling you that you talk to me not my client.
Me: Ok, I will honor your request.
Colleague: It’s not a request, I’m not asking, it’s right there in 4.1, you should know that you aren’t allowed to speak with represented parties, and you knew I was representing him. What you are doing is shifting the cost of those medicals, which will be thousands of dollars.
Me: No, it won’t cost that, people are entitled to copies of their own medical records for free or nominal charge, [name of another lawyer] taught me the procedure.
Colleague: I know [name of another lawyer]. It doesn’t work that way. You talk to me not my client. If you want to talk to my client you do that through me. You know the rules, you have to know better than that, what you are doing is going to cost them thousands of dollars that they don’t have. You don’t talk to my client.
Me: What do you want me to do if your client calls me?
Colleague: I don’t control my client.
Things had escalated quickly. I asked my colleague for a word in private but she wasn’t interested in speaking out the earshot of the clients, social workers, the child that was there (by then hiding under the chairs), and the CYF representative.
My colleague’s behavior was highly unprofessional. Her client did not hire her to throw a tantrum and her doing so was unnecessary and probably quite stressful for him. My colleague could have easily asked me for a word in private and expressed her concerns, lawyers do this all the time and there was no legitimate reason not to do so.
There may have been an illegitimate reason for making sure her client saw and heard her yell at me and accuse me of unprofessional, unethical and irresponsible conduct. Why put on such a show when the objective could be accomplished with a private conversation? Why refuse to discuss the matter privately? I have my suspicions, but I will leave you to ponder what benefit could accrue to my colleague airing these false accusations in the way she did.
Hilariously, my colleague was wrong on almost every premise underlying her anger, indignation, and disgust:
- It is Rule 4.2, not Rule 4.1, which governs lawyers’ communications with represented parties
- Rule 4.2 is designed to prevent attorneys with adverse interests from directly contacting a represented party. For example, the lawyer for the “other side” in a case isn’t supposed to talk to you about the case without your lawyer present. I was not on the other side.
- Additionally Rule 4.2 prohibits attorneys from making contact with represented parties in regard to the subject for which they are represented. Even if I had been on the “other side” of the family case, I could talk about baseball scores, weather, and, in fact, strategies to order medical records without breaking Rule 4.2
- I was talking to the social worker, not my colleague’s client, in any event.
- I was trying to save money for both her client and mine. Unknown to my colleague was the fact that the medical records provider, Verisma, had themselves suggested the strategy I was proposing as a way to save the family the cost of getting medical records.
I have written about this personality type before in my article about fake leadership in the law. Unfortunately, I have also met this personality several times in real life. They are always quick to become incredibly angry about some imaginary thing you supposedly did. They will never tolerate any reasoned argument that you did not do what they falsely accuse you of, or that perhaps their emotional response is overblown.
This sort of behavior is a pathology that damages my profession. It is a projection of the bad actor’s own poor ethics, greed, and unprofessionalism onto another.
Known to my colleague was the fact that, in perhaps 30 minutes, the family case for which she represented the father for would be over. Also known to my colleague was the fact that my representation of the mother would continue into late summer and that, in my colleague’s estimation, I had been “handsomely” paid for that case.
There is an accepted truth that people intend the natural consequences of their behavior.
My colleague had no concern whatsoever that her behavior might damage the ability of my client and her family to take comfort and support from my representation. My colleague had no concern that her behavior might create a lingering question of my trustworthiness and competence.
I will leave it to you to decide what the natural consequences of damage like that might be and whether my colleague intended those.
If you or a loved one have suffered from a personal injury-related incident, please contact me and my law firm.