‘Taking advantage’ is a phrase I hear a lot when lawyers discuss their work. I think it is linked to the idea of lawyers as business people concerned with competitiveness and commerciality, but in any event it manifests itself in the restless and energetic pursuit of getting the best possible deal/outcome for each client on each occasion.
Not much wrong with this perhaps, but is it the duty of a lawyer to take advantage of every given situation?
I would like to suggest that the answer is ‘No’. It is undoubtedly the duty of every lawyer to act in the best interests of their client, while also (obviously) acting in accordance with the ethical standards set by the profession. However I also believe conduct should ensure that lawyers act to enhance the reputation and standing of the profession as well.
‘Taking advantage’ can comfortably fit within this, but it is not always a perfect correlation and so exploring the differences is worth a moment of reflection.
One indelible moment for me as a young wet-behind-the-ears lawyer was when I was representing a client in the Magistrates Court. I was new to advocacy (new to everything) so had prepped my lines exceedingly well. I knew them inside out and backwards, I had swallowed great chunks of criminal process law and my client was probably sick of the sight of me (I remember him saying to me ‘Don’t worry son, I have done this more times than you, we’ll be fine!’).
I made my case and I won. I had done well and I sat down in the manner of a parachutist making a rather inelegant landing with an audible exhalation of relief. A second or two passed with the senior magistrate looking at me intently, at which point my grey-haired, rumpled opponent pulled himself wearily upright from his seat:
‘Sir’ he addressed the bench ‘I believe Mr Gilbert, would now almost certainly like to request that you kindly make an order for costs in his client’s favour’.
It was generous and kind, but I would now also argue appropriate as well. I learnt a huge lesson that day about what it means to be a really good lawyer, and it wasn’t that I won my case.
How lawyers behave to their opponents speaks volumes for their integrity and their confidence. Today I routinely note how lawyers in law firms behave to their suppliers, their staff and in their communities. The measure of the firm is rarely the self-serving puff on their websites, but what the client of an opposing law firm thinks of them and what the serving staff in the next door café think of their law firm customers.
A few years ago I ran a training workshop for a bunch of young lawyers, still trainees, in a City law firm. Three or four found the lure of games on their phones more interesting than my dulcet tones. I do not necessarily blame them for reaching such a conclusion, but it was singularly rude. Looking back I suspect I may have taken a little more pleasure than I should in letting them know that while they may not rate my skills as a workshop facilitator, I had mentored ten GCs who were significant clients of the firm. At which point we all readily agreed that every impression one takes of any place, good or bad, one tends to share.
Apart from my own anecdotes, I have collected hundreds more from people I work with and have done so now for fifteen years; what I see played out every day is that behaving like an arse is not a long term play. Taking every point, arguing for the sound of your own voice, the ‘mind games’ email late on a Friday …all frankly tedious as hell.
While showing old fashioned courtesy, thoughtfulness and respect doesn’t mean you win every case, it does mean you can live with yourself more easily and I am convinced is better for clients as well; it also means that when times are tougher you are more likely to receive the support of colleagues and contacts, instead of feeling the glancing blow of passing tumbleweed.
The world is an interdependent place, careers wax and wane, advantage is often temporary, power is transitory, vulnerability is at some point an inevitability. When it goes well there are choices; I am not going to lecture anyone on being a good professional citizen, but I do ask that you recognise the choices you have and the decisions you make.
A conscious, present and self-aware assessment of your options, of the behaviours you adopt and the decisions you make is a telling and important aspect of your personal development.
The best interests of your clients of course requires your brilliant strategies and your tactical masterstrokes, but the best interests of your clients means ensuring your reputation and credibility are secure as well.
Paul Gilbert is chief executive of LBC Wise Counsel. To read his blog click here.
