ethics
The boundaries of client discourtesy Gino Dal Pont Professor, Faculty of Law, University of Tasmania
In my October 2015 column, I concluded by remarking that '[t]here is … a price of membership of the legal profession, which in this and other instances is extracted via an expectation that members suppress otherwise prevailing human nature'.1 This remark was made in the context of dealing with or responding to difficult clients, including those who show disrespect or discourtesy to their lawyer, or make seemingly unreasonable complaints or allegations against their lawyer. And it was made against the backdrop of a longstanding expectation of lawyer courtesy implicit in professional status. Beyond the 'good business' notion of not antagonising clients, lawyer courtesy can be located as one of the counterbalances to the position of knowledge and power most lawyers hold over their clients, while concurrently speaking to the independence that a lawyer must bring to the representation. As to the latter, lawyer attempts to maintain the professional relationship on a courteous basis represents a means of walking the tightrope between partisanship and independence. Lawyer independence that comes with keeping some distance from the client, and the client's cause, may make it less likely that the lawyer will personalise client disrespect or discourtesy. Expectations of lawyer-client courtesy, though, should not be confused with a perpetually 'meek and mild' lawyer. Good representation may sometimes require some degree of forcefulness visà-vis the client, especially for clients in need of a 'reality check'. Occasions will arise where the lawyer may legitimately (or even must) interact with a client — whether because of the circumstances and/or the nature of the client — in strong or blunt terms. Dovetailing into the preceding paragraph, moreover, for a lawyer to simply ignore or blithely tolerate client disrespect or discourtesy towards him or her raises the risk of the lawyer appearing unduly weak
06 | BRIEF MARCH 2016
and capable of being bullied by the client. Neither perception is necessarily amenable to good legal representation. That client disrespect or discourtesy should not breed in the lawyer a 'tit for tat' response, being the upshot of my earlier column, does not mean it should be ignored or even tolerated. Bearing in mind the manifold personality and interpersonal dynamics that span human interaction, and thus also those between lawyer and client,
a racist or sexist form — may not be grounded in any genuine dislike for the lawyer. This in turn raises the question whether a lawyer should be expected, as a matter of professional ethics — or, perhaps even more tellingly, at a risk of being in some way prejudiced by way of costs recovery — to remain a 'punching bag' for client verbal abuse. Should the ethics of a profession, and the entire contract rules relating to costs recovery (including liens), demand of
" ... professional relationship on a courteous basis represents a means of walking the tightrope between partisanship and independence." there is evidently scope for lawyers to legitimately react to client disrespect or discourtesy. The question relates to the nature of and, perhaps even more importantly, the motive for, this reaction. The latter, if measured, and driven by an attempt to restore the relationship to a professional basis, is entirely apt. Indeed, a lawyer's failure to respond here may convey to the client not only lawyer weakness, but some understanding that the client's behaviour is acceptable in the circumstances. A written communication, expressed in non-inflammatory language, bringing to the client's attention the inappropriateness of the conduct and requesting that it cease or be moderated, will in most circumstances be an appropriate response.
lawyers a non-emotional response? Or should lawyers be granted some leeway in being released, without adverse ethical or costs consequences, from representing clients who persist in discourteous, disrespectful or offensive behaviour vis-à-vis their lawyer? There are difficult issues of policy here, traversing into the importance of a person being able to secure legal representation, irrespective of his or her character and attitudes. The significance of latter, as a core value in free society, can hardly be downplayed. Whether it should always represent an entirely oneway street, however, may be queried.
1.
G E Dal Pont, Eschewing 'Tit for Tat' in Client (Dis) Courtesy (October 2015) 42 Brief 6.
What if the client nonetheless persists in being disrespectful, discourteous or even offensive to the lawyer? A client whose behaviour is driven by a dislike of the lawyer, or a lack of confidence in the lawyer, may reasonably choose to terminate the retainer, or request another lawyer within the firm to act.2 But instances remain where client misbehaviour in this regard — including disrespect or discourtesy that can attract legal sanction, such as vilification in
2.
I am grateful to a reader of my October column for raising the issue of clients wishing to change lawyers within a firm for what are ostensibly racist or sexist motivations. In this context, it seems, client choice must prevail, and it is not up to individual lawyers to 'block' that choice merely because it appears driven by illegitimate motivations.
NOTES