08.06.2022 at 04:13 pm

Counsel vs Client Perspectives

Advising fairness, and discouraging clients from litigation.

... Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser -- in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.

- Abraham Lincoln

Consider these ideals: justice and fairness, for the wronged.

No reasonable mind would disagree with those ideals.

Yet lofty and abstract ideals can sometimes be irrelevant to clients - especially commercial clients - some of whom believe the legal system runs only on expensive fees, and nothing else.

Thus I find this to be the hardest part of legal practice (above the lawyering work itself): where we try to instil fairness, and actively dissuade clients from unnecessary litigation - an idea which runs counter to the business side of litigation, and how litigators supposedly profit from litigation.

Why are clients' perspectives difficult to deal with?

Say for instance, that you have been engaged by a businessman. Take that your client is wilfully trying to delay/avoid payment to subcontractors, without good reason. (Which is not that uncommon a scenario; some high-ranking businessmen need only a perceived slight/mistake to claim a wrong and withhold payment.)

Conversations with such folks often revolve around one end only: money.

It's all this: 'How does this affect our bottom line?' or 'How does this make/save us money?' Being 'fair' often isn't even part of the clients' consideration.

Now, as counsel:

  1. Can you advise the client against the viewpoint they retain you for?

  2. Would you not remind the client to be fair to others - to pay people their dues?

  3. Or would you encourage that client to litigate the matter still, and put up a sham defence, all for the sake of extracting legal fees?

Why advising fairness is hard

Sadly, more often than not, clients are deaf to pleas of fairness.

This usually arises from expectations - some being reasonable, others being unreasonable and even extreme.

Some clients cannot imagine anything but their own cause to be fair; others may be too emotionally invested to care otherwise. Some clients may even berate you for trying to play fair (because they want to 'punish' the other side); some will consider you 'weak' for not taking advantage.

Some clients may even go rogue and turn against your advice - because they think that they know better, or because to them you're nothing but a legal tool to achieve their aims.

It does not help either that some lawyers even entirely avoid discussions of fairness with clients, for fear of losing business.

So where do we draw the line?

I do not think it enough for us to counsel clients merely on the legalities.

We must also advise clients to be fair. Sometimes they have not considered this at all. A client's choice - whether to litigate or not - is certainly his or hers to make, but should come after we counsel them on the virtues of fairness.

If we fail to advise clients about fairness, then we are nothing but mercenaries hungry for coin. And it is we who, by knowing omission, become enablers of strife.

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