Sunday, 14. April 2024

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Conflict as part of the Profession

I sometimes wonder how working as a doctor can actually be “fun.” Always surrounded by illness, suffering and pain, and not infrequently even death.

On the other hand, we lawyers don’t exactly work in a “bubble of bliss” ourselves, but are constantly dealing with conflicts. Let’s take a closer look at this.

1. The conflict of the client

a) People don’t come to the lawyer to have a “good time.” We are not entertainers, but clients come to us when they have legal problems, a dispute or a legal conflict with someone. Conflicts are, comparable to a root canal treatment at the dentist, stressful and get on your nerves. Especially when you have to deal with an opponent – as I have just done – who considers coercion and fraud to be legitimate negotiating tactics. …

But even apart from such extreme cases, people often do not show their best side in conflict situations. I once represented a good friend of mine as his lawyer. The person, whom I knew in private as reasonable, well-balanced and willing to compromise, turned out to be extremely opinionated, stubborn and sometimes even aggressive in his legal dispute.

b) You probably know this when you yourself are affected by some kind of an official procedure. A ticket (penalty notice) for parking on a driveway for instance. But I didn´t obstruct anyone, did I? Or because of a too small safety distance on the highway. Hello, that was the PASSING lane, and he drove 10 km/h SLOWER than the speed limit. And if he doesn’t react to my headlights flashing, what else can you do? …

It makes sense that a lawyer should not represent himself in his own case. You always tell the client quite reasonably that he should limit his presentation of the facts to the legally relevant ones and better leave out the emotions. And in your own case, you make exactly the same mistake. The judge absolutely has to know this and that aspect in order to be able to better assess the “mean behavior” of the other side.

c) And the lawyer is drawn into this conflict between the client and his opponent. For the opponent, you are usually the bad guy anyway. I experienced this once at an on-site meeting in a landlord/tenant dispute. The tenant, whom I had never met before, didn’t want to shake my hand when I greeted him, because he automatically equated me with my client, the landlord he hated so much. If the opposing party in the lawsuit is evil, then his lawyer must be evil too; that was his way of thinking. I had nothing against the man personally, but it was merely my legal task to represent the interests of my client.

d) In a sense, the lawyer is – as a result of his function as a party representative – often also the enemy of the other party. One must come to terms with this. The legal profession is not for those who are (excessively) in need of harmony.

2. The Conflict with the client

Satisfaction with the profession, i.e. being happy in your job, stands and falls with the people whom one has to deal with on a daily basis. For a lawyer, these are his clients.

Even working in a relatively „uninspiring“ area of law can be fun if you get along well with your clients and work together to overcome legal challenges. On the other hand, the most exciting subject matter can become torture if you have to deal with “conceited idiots” all day.

Reason enough to make a small typology of (difficult) clients. Of course, as a lawyer you have to be careful that no actual client feels addressed and “stepped on his toes”. Therefore, as a precaution: This is a typology, a caricature, so to speak. Similarities with living or already deceased clients are purely coincidental and not intended.

a) The Boss

There is the type of client who wants to determine everything himself. He tells the people around him and also “his” lawyer, which direction to take. The “boss” wants to determine strategy and tactics all by himself. The same applies to the tone in which the lawyer shall correspond with opposing counsel and the court.

I sometimes wonder how Donald Trump’s lawyers might feel. A powerful, choleric and uncompromising client who expects “unquestioning allegiance” whether he is right or not. His former lawyer, Michael Cohen, lied for him and broke the law. For this he was later sentenced to imprisonment. Was this greed, his own weakness or a completely wrong understanding of the attorney/client relationship?

In any case, caution is called for here. The lawyer is not the client’s henchman. What the lawyer writes under his letterhead and signs at the end is his own responsibility. And therefore, the client cannot dictate to him what a lawyer has to write and how he has to write it. The lawyer and the client must agree on this. Otherwise the mandate is finished.

b) The Know-it-all

Who doesn’t know the client who, after a short internet search, thinks he understands more about the law than the lawyer who has studied the subject for many years? Or to be able to formulate better and more accurately? …

Here one must differentiate: The client often actually knows the facts of the case and possibly also his industry better than the lawyer. So it can’t hurt for a lawyer to listen first.

But “We always do it this way in our industry” does not necessarily mean that it is legal. And the client often has very little idea about general legal principles. A claim for damages requires proximate cause? What is that exactly? The other person made the mistake. … But that is not enough for a cause of action. As a lawyer, you have to make it clear that a quick Google search cannot replace a law degree.

On the other hand, a certain leniency is also recommended. You know this from personal experience, don´t you? You quickly research something on the internet and you think you’re more competent than the specialist. We lawyers in particular tend to have the (mis)belief that we understand things better than some medical or other experts. …

c) The Faultless

There are clients who always blame others for the legal misery in which they find themselves. Sometimes also their own lawyer. But the lawyer can’t be held responsible for the notice of termination that the client received, just as the doctor can’t be held responsible for the illness of his patient.

Been cheated by the seller on ebay? Now I need a lawyer to help me immediately. Free of charge, of course, or the costs should be borne by the opponent.

Or these completely exaggerated Corona protection measures. Do I have to abide by them? What can I do against it? The lawyer should sue the City, the State of Bavaria or the Federal Government. …

But the lawyer is not a provider of free legal advice. And it is not the lawyer’s fault if the client’s legal protection insurance does not cover the costs. Because preventive legal advice does not constitute a legal protection case. Or because contractual disputes are not covered by the insurance. Or because the case does not fall within the period for which insurance coverage exists or existed.

The lawyer is a service provider, yes. But a service costs money, and the client, not the opponent, is liable for the lawyer’s fees. The client may have a claim for reimbursement of costs against the opponent. But this has to be enforced first. That would be another service for which a fee is charged.

The lawyer is not responsible for the injustice done to his client, nor is he obliged to support him with free legal advice.

d) The Trickster and Deceiver

Some clients seem to believe that their lawyer will represent them most effectively if they tell him only half the truth. That is, only what speaks for the client. And the lawyer doesn’t need to know about the skeletons the client has in the closet.

But that is nonsense. The lawyer can only represent his client effectively if he knows all aspects of the case. Nothing is worse than when the lawyer only finds out from the opposing side at the court hearing what negative evidence there is against his client.

This is particularly obvious when it comes to a possible settlement. In order to be able to advise his client properly, the lawyer must assess the risks of the case. However, he can only do this if the client also informs him of the negative aspects of the case, i.e. the possible mistakes that the client made in the run-up to the legal dispute.

Clients who deliberately try to instrumentalize their lawyer also fall into the same category. In other words, they try to use the lawyer to enforce claims to which they are not entitled or to defend against opposing claims that are actually well-founded. But: Deliberately withholding information from the lawyer for this purpose is not okay. In the worst case, it may even be criminal fraud.

An attorney/client relationship that is built on lies and untruths cannot be a good relationship. As a rule, it does not lead to the client’s desired success, but can cause considerable difficulties for both the client and the lawyer.

3. The Conflict with colleagues

a) There is a rumor circulating among high school graduates that the “AH-factor” is supposed to be higher among law students than in other courses of study. So for once, I hope that’s not true.

Are lawyers more opinionated, conceited, aggressive, etc. than other people? It wouldn’t be surprising, really. After all, our training and task is to understand legal problems better and to know better than others how to act in a specific situation.

The client expects advice and – sometimes – guidance from the lawyer. What should I do now? How should I act in the face of a job termination? How do we respond to the accusation of breach of contract? How do we assert our claim for damages? That’s what the client wants to know from the lawyer, that’s what he pays him for. “I don’t know either” is certainly not an appropriate answer from the lawyer.

Do not show weakness. Show the client and the opponent that you are more competent, more assertive and that (only) you can handle the situation properly. These are generally not qualities that make someone particularly likeable. But it is often part of the lawyer’s job.

b) On the other hand, especially as a lawyer, one should know that legal disputes are part of what you deal with every day. The opposing lawyer is also just doing his job. One should not hold that against him. Or, as (future) U.S. President Biden recently put it with regard to political opponents: We may be opponents, but we are not enemies.

Dr. Wolfgang Gottwald
Rechtsanwalt/Attorney at Law

Attorney at Law

Leopoldstraße 51
80802 München

Tel.: 089/383 293-10
Fax: 089/383 293-13