Ethically Speaking: How Do I Minimize and Manage Conflict With Clients and Other Lawyers?
“In dwelling, live close to the ground. In thinking, keep to the simple. In conflict, be fair and generous. In governing, don’t try to control. In work, do what you enjoy. In family life, be completely present.” ― Lao Tzu
While managing relationships with clients and opposing lawyers is inevitably part of practice, over the past two years, calls to Practice Advisors about conflict between lawyers and between lawyers and clients have increased, and the conflicts reported have worsened. Incivility, unwillingness to extend courtesy, impatience, and even bullying characterize the calls. Some callers are angry, others in tears. Many want to leave practice. The conflict impacts both clients and lawyers: increased fees, file delay, lack of objectivity, unhappiness at work, reticence to pick up that file, stress and even substance use.
Ultimately, best management of conflict involves what the individual lawyer can do themselves, recognizing that they cannot control the client, the opposing lawyer, or the court. Lawyer job satisfaction is enhanced by positive client relationships and building good relationships with colleagues in and outside of the office, and by having strategies to manage conflict. Some strategies include withdrawal from a file where possible, deliberately keeping oneself out of the conflict, training clients to better understand the lawyer’s role, and self-care.
As with many questions about legal ethics, competence is the starting point. The Code of Conduct requires lawyers to provide legal services to the standard of a competent lawyer, having and applying relevant knowledge, skills and attributes in a manner appropriate to each matter. It includes practice management and the lawyer recognizing limitations in their ability to handle a matter or some aspect of it (Rules 3.1-1 and 3.1-2).
A lawyer who experiences a visceral reaction, such as deep-seated dread or perhaps fire-like ire, provoked by either the client or opposing lawyer on a particular file, should consider whether they are competent to act. These kinds of responses can indicate the lawyer is taking a file personally and changing their focus from the merits or the client’s needs. Rule 3.4-12, Commentary [2] suggests that this personal conflict impairs the lawyer’s objectivity and requires withdrawal unless the client consents, and it is in the client’s best interests that the lawyer continue to act. Withdrawal in this circumstance is not straightforward and must be balanced with Rule 3.7-2 which requires a serious loss of confidence between the lawyer and client before the lawyer may withdraw. The lawyer must frankly assess whether their personal reaction due to a difficult relationship does indeed meet the requirements of both rules so that they may, or perhaps must, withdraw. In other words, on its own, the difficult relationship between the lawyer and client may not justify withdrawal. In Untying the Knot: Withdrawing from a Client, the Law Society provides additional guidance on when and how a lawyer can cease to act.
Where withdrawal is not possible, sometimes a good strategy is to ask another lawyer with whom they work to take over the file. Within a firm it may be possible to develop a system of trading difficult files. Trading files removes the stress and puts someone who is not emotionally engaged in control of the file.
Sometimes reporting the opposing lawyer is an appropriate route. Reporting another lawyer may prejudice the client and must be considered within the overall file strategy. It should not be counted on as a solution. Indeed, the Law Society does not grant civil relief and cannot force a difficult opposing lawyer to “be nice”. A complaint may fix the problem, or it may make it worse.
As strategies of last resort, withdrawal and complaints may not always be available, practical or reasonable. Lawyers should instead devise and practice strategies in their reactions to opposing counsel or client conduct. In his article, A Lawyer’s Resolution to Stay Out of Trouble, Marcel Strigberger notes that he was willing to “blink first” to defuse conflict: “I found it useful to keep my ego at the door. The conflict was my client’s, not mine. I concluded it was OK to blink first.”. In doing so, he avoided taking on the conflict himself and continued to advance this clients’ interests. The lawyer’s ego does not win the client’s war.
Managing conflict with clients involves training clients to understand how the lawyer practises, educating them that not only is the lawyer not the aggressor they see on television programs, but that their interests are not served by such aggression for aggression’s sake. Taking steps at the beginning of a file to set out the lawyer’s practice style can allow the client to assess whether the practice style aligns with their values. If not, they can go elsewhere.
Many lawyers, particularly when they are starting out as new calls, or in a new employment situation, feel compelled to take every client who walks through their door, even when their spidey-senses suggest they should not take a particular client. Not only is it okay not to act for every potential client, best -practice is to assess each client and each file to confirm that the potential client and lawyer’s values align to form the foundation of a constructive working relationship. The lawyer’s wellness is a key element of this assessment and should not be disregarded.
Mindfulness is an important strategy for lawyers, contributing to resilience and self-care. In his article Managing Your Emotions so They Don’t Manage You, Joseph Beckman, advocates for mindfulness as a way to “prepare for the unavoidable.” He calls it “exercising the mind.” Jeena Cho, a former bankruptcy lawyer and co-author of The Anxious Lawyer: An 8 Week Guide to a Joyful and Satisfying Law Practice Through Mindfulness and Mediation has devoted her practice to lawyer well-being. Through mindfulness and meditation, at least some of the anxiety and stress which legal practice invokes can be managed and prevented from becoming all-consuming. Harvard psychologist Ellen Langer notes in Mindfulness in the Age of Complexity that “stress is not a function of events; it’s a function of the view you take of events. You think a particular thing is going to happen and that when it does, it’s going to be awful. But prediction is an illusion. We can’t know what’s going to happen.” She notes that mindfulness enables people to set aside mental distractions to be present.
Organizations can implement programs about mindfulness. Such programs have the benefit of implementing change within the workplace and providing systemic support for struggling lawyers. That may be out of reach, particularly for a junior lawyer. Apps may help lawyers to build resiliency, including Calm, Headspace, Insight Timer and Mood Meter. Assist also offers a comprehensive library of resources, including resources about mindfulness.
As an inevitable component of practice, conflict with clients and with other lawyers cannot be prevented. Managing it requires acknowledgement by the lawyer that they can only control their response and develop tools and resources that allow them to do that. Withdrawal from the file and Law Society complaints are tools of last resort. The better approach is to control what can be controlled to enable the lawyer to remain objective and advance the client’s interests.