Are you crossing the line?

If you can keep your head when all about you
Are losing theirs and blaming it on you
If you can trust yourself when all men doubt you,
But make allowance for their doubting too;
If you can wait and not be tired by waiting,
Or being lied about, don’t deal in lies,
Or being hated, don’t give way to hating,
And yet don’t look too good, nor talk too wise:

– If, Rudyard Kipling

We are in the business of communication.

The best technical legal knowledge is worthless if we cannot communicate that to our clients, colleagues and the courts. The best powers of reasoning and persuasion amount to nothing if we cannot effectively communicate our arguments.

There are libraries full of books on effective communication and the art of crafting effective correspondence – I won’t go there today.

It is however a sad fact of real life in practice that we will from time to time receive discourteous, aggressive, demeaning or bullying communications. How we respond to that situation, and how to avoid being the author of that type of correspondence is the focus of this article.

I acknowledge the recent presentation on this problem by Josh McDairmid (WGC Lawyers, Cairns) and Ben Meredith (MacDonnells Law, Cairns) at the recent NQLA conference – I recommend their paper to anyone interested in this topic. Thanks Josh and Ben for your insight.

Television has a lot to answer for, and that’s particularly true of the stereotype gun lawyer heroes of the American screen – the great lawyer is portrayed as aggressive, confrontational and belligerent. It might make good, TV but is almost universally terrible in the real world.

We are bound by the Australian Solicitors Conduct Rules 2012. They deal with professional courtesy and respectful communication, honesty and practising with integrity. Those rules are the bottom line if your conduct comes into question, so do yourself a favour, and read and become familiar with those rules.

The importance, however, goes far beyond just complying with the rules. Our communication skills as lawyers are our greatest asset, understood and managed well, but if we cross the line and mishandle those skills, they are a liability to us and our clients.

Disciplinary consequences aside, poor communication cannot only damage your clients’ prospects and outcomes; they will damage your reputation, your ‘brand’ as a lawyer. And they can cause real harm to other people – our colleagues.

What goes wrong?

As a starting point consider our basic responsibilities:

  • to act in the best interests of our client[1]
  • to be honest and courteous[2]
  • to avoid compromise to our integrity and professional independence[3]
  • to respect our duties to the court and our opponent.[4]

We run the risk of getting communications wrong when we lose objectivity. We are not a megaphone for our client, we are first an objective, impartial advisor for our client, and then an advocate. It is our responsibility to understand and empathise with the client’s problem, but we must always maintain objectivity.

If we don’t manage client expectations, we will get unreasonable demands in our instructions. We do not blindly do everything our clients tell us to – we have to take on board what they are asking for and then act on what we can do as ethical professionals. That will sometimes mean telling clients we cannot do what they are asking for. We do not yell at the other party just because that is what our client wants.

If we take on the client’s problems as our own, then we lose objectivity. We are not acting in the best interests of our clients if our advocacy crosses the line into personal attacks on the other party, or their lawyers.

So here are some tips to help avoid being the author of toxic correspondence, and what to do if you receive that sort of correspondence:

If you are to send correspondence:

  1. Plan your communication. Know all that you have to say and any facts that must be established to support your position – then communicate those facts and relevant law and argument in a logical sequence, unemotionally. Stick to the facts and the law. Good legal communication generally does not need any adjectives!
  2. Don’t write any communications when you are emotionally charged – by anger, embarrassment or anything else. You will inevitably regret something you say.
  3. Draft every email, every letter and make every phone call on the assumption that whatever you say will one day be in an affidavit and being read by a judge. Pause, and imagine yourself standing in court when a judge is reading that email and asking you to explain yourself. Don’t allow your emotions to put you in that position.
  4. Have a supervisor, senior lawyer, trusted experienced colleague or mentor whom you can call and talk to. Run the situation past them, show them the letter you want to send, and heed their advice.
  5. Keep the resolution of the client’s problem as the only focus – don’t get distracted into a battle of wills with the other lawyer.

If you receive insulting, discourteous or bullying correspondence:

  1. Firstly, step away from the keyboard and take a moment so you are thinking clearly. Don’t hit ‘Reply’.
  2. Remove the emotion from the communication – one technique is to print the letter or email you have received, and go through it with a highlighter and mark only the words or sentences that are relevant to the client’s problem. That will help you see the actual content of the letter, without the emotion or vitriol.
  3. Listen – don’t let the tone of correspondence distract you from its content and meaning. Consider arguments raised, and points made. None of us are right all of the time, and even bad correspondence can still be correct in its content. Don’t let your pride make you deaf to information that is relevant to the case.
  4. If someone is behaving badly, don’t lower yourself to their level, and fire off a response in the same (or worse) tone. As a wise person once said, “never argue with a fool – they will drag you down to their level and then beat you with their experience”.
  5. If the author of the correspondence is someone you know, or have dealt with before, pause a moment and consider if the communication you have received is out of character for the person. It is possible they may not be coping, maybe having other problems, and your matter has become collateral damage. Consider if an ‘R U Ok’ call to the other solicitor (or to someone they work with) may be warranted.
  6. Again, have a mentor, supervisor or trusted colleague that you can talk openly to about the situation, and get advice on how to respond. There is no shame in asking for help.
  7. Sometimes the best response is not to respond to the inflammatory comments but to direct your attention to the pertinent issues.

Doing the best for your client will not be achieved if you lose objectivity and impartiality. Stay focused on your client’s problem. Have the self-awareness to recognise when you are becoming emotionally invested in your client’s problem, and having a battle of wills (or egos) with the other solicitor. Be wise and step back if you can see yourself crossing the line.

The heart of bullying conduct is an imbalance of power – and in this context that means it is usually junior practitioners who are on the receiving end of toxic communications. Don’t underestimate the toll that can take on your mental and physical health. If you are distressed by something that you have received, don’t be afraid to ask for someone else’s view of the situation. Speak to a trusted colleague, or make a call to LawCare.

Should you lodge a formal complaint against the author?

That may well be called for, but think and get some independent advice before taking that step. At the least it will destroy any trust or cooperation in the current matter, and possibly damage professional relationships (for yourself and maybe your employer) permanently.

I am not suggesting bad conduct should ever be condoned, but get some advice before taking that step, there may be far more effective (and collegiate) ways to address the problem. Speak to a Principal at your firm, call a QLS Senior Counsellor or the QLS Ethics and Practice Centre. Don’t let someone else’s bad conduct end up damaging your professional reputation.

Be the better lawyer by being the better person.

Peter Apel is a solicitor who has practised in Far North Queensland for more than 30 years. He is a member of the Queensland Law Society Wellbeing Working Group and the QLS Water and Agribusiness Committee. Peter is also a Notary Public, a QLS Senior Counsellor and a mentor in the FNQLA law student mentoring program.

Footnotes
1 Australian Solicitors Conduct Rules 2012 r4.1.1.
2 Ibid rr4.1.2, 5.
3 Ibid rr4.1.4, 17.
4 Ibid r3.

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