In my 6th year of practice, I represented an insolvent client in his negotiations with his Bank. The retainer came upon me suddenly as the client was summoned to a meeting with the Bank and its lawyers on virtually no notice and told to bring counsel.
I met the client for the first time just before the meeting, and off we headed downtown to meet with the Bank’s representatives and a senior insolvency lawyer at a large Toronto firm. I will call this lawyer Tom since I want to make it clear that he was an asshole, but I really do not want to be sued for writing this article. (Although I suppose that the risk of a successful lawsuit would be low since truth is a complete defense).
Also in attendance was Tom’s associate who I will call Bob for the same reason. As best as I could tell, Bob’s only job in the meeting, aside from taking notes, was to look serious, nod his head and say “I really have to agree with Tom about this” from time to time, without any particular regard as to whether or not Tom was correct. Of course, his opinion was kind of irrelevant, given that he was a sycophantic junior to Tom.
It just so happened that the representatives of the Bank were the manager and account manager of the local commercial branch of the Bank for which I acted on lending matters. Tom knew this.
The Bank’s strategy was to try to get our clients to put some more money into the company or to provide additional personal guarantees before inevitably calling the loan. Many threats were made.
My client had worked with his accountant to come up with a plan which was intended to satisfy the Bank. Due to the urgency with which the client had been ordered to attend the meeting, I did not see the plan prior to him presenting it for discussion at the meeting. As soon as I did see it, it was obvious that there was a fundamental flaw and that it would not satisfy the Bank.
Tom looked at the plan and of course identified the same flaw and then proceeded to tell my client, in the presence of the bankers with whom I had a prior relationship, that “he should go out and get a lawyer who knows something about insolvency.”
I was not amused. Not only was I not amused, but I spent many years afterwards hoping for the opportunity to get back at Tom. (One of my many personal character flaws is that I don’t let go of things easily.) Unfortunately, he retired before I got my chance.
All of this brings me to the Law Society’s Rules of Professional Conduct, which say:
“A lawyer shall be courteous, civil, and act in good faith with all persons with whom the lawyer has dealings in the course of their practice,” and the commentary says “A lawyer should avoid ill-considered or uninformed criticism of the competence, conduct, advice, or charges of other legal practitioners…”
I am not sure if the rule was identical back when this event occurred, but I am fairly certain that the general principal about not being a jerk when dealing with other lawyers was the same.
Early in my career, a fellow named Martin was one of the partners in the firm where I worked. I once attended a meeting with Martin where he completely lost his composure and yelled and screamed at the other side in the boardroom and then, being too upset to stay in the room, stormed out. I followed him out of the room.
As soon as he was out of the boardroom, Martin calmed down completely and casually strolled over to the kitchen that adjoined the boardroom and had a muffin. There was a peephole in the door between the kitchen and the boardroom, presumably intended for use by waiters to see if it was time to clear dishes. Martin very calmly looked through the peephole to gauge the reaction to his tirade. Satisfied with his work, Martin finished his muffin and stormed back into the boardroom, as mad as when he left.
On another occasion, the other side’s client called me about Martin and said: “Can you ask your boss to stop yelling at my lawyer, because he can’t take it.”
Martin was a bully, although he was “our bully.”
I used to live and work in the Greater Toronto Area. It was not unusual for someone to drive aggressively, or if my driving displeased them, to lay on the horn, flash me the finger or yell obscenities. I expect that they felt free to do that because they thought that they would never see me again. By the same token, when I went for a walk, it would be rare for someone who I did not know to greet me. Such is life when people feel anonymous.
When I retired, I moved to a tiny little hamlet called Buckhorn. Everyone says hello when I walk by them, whether they know me or not. If my driving is sub-par, I tend not to hear about it from other drivers (unless they are visiting from Toronto or happen to be married to me). I expect that the reason for this is that if someone were to act inappropriately, the entire hamlet would know about it soon enough, which is something to be avoided.
I never had the pleasure of practicing law in a small town, but I imagine that the dynamics are similar. If you are going to be dealing with the same lawyers over and over, it may not make sense to be a jerk.
If you have read this far, you may be beginning to wonder whether I have a point. In fact, I do.
My point is that some lawyers are bullies, and I would guess that they get away with it more in large cities than in smaller towns. They were bullies on the playground and now they are bullies in the boardroom. To the extent that judges let them get away with it, they are also bullies in court.
As a young lawyer, you will run into some of these people, in places where you might not expect it. I ran into Tom at a Bay Street law firm. During my career, I ran into many other bullies, both on and off of Bay Street. The bullies appear to believe that if bullying advances the interests of their clients, then being a bully makes them a good lawyer.
There is no doubt that bullying works for some lawyers. There was one litigator in Toronto who built up quite the reputation for suing people personally, whether or not his claim was clearly against a corporation. The theory, as I understand it, was that people hate being sued personally and were more likely to settle on good terms, even when the claim against them had no merit.
You cannot count on the Rules of Professional Conduct to rein these people in. So, you have to develop strategies for dealing with them.
One of my early strategies (which I do not recommend) was to match the conduct of the bully. If the bully yelled at me, I yelled back a little louder. If they swore at me, I swore back with a more offensive word.
A young female lawyer who I know had a more interesting strategy. She found that more senior male lawyers would try to intimidate her by screaming at her. She would allow a rant to continue until she could get a word in, and then would treat them like a tantrum-throwing kindergarten student. She would speak in a low voice and say things like: “You have had your turn to speak. Now it is your turn to listen”, or “You know that you can’t listen while you are talking.” Alternatively, she would say: “You don’t seem to be calm enough to discuss this right now, so please call me back when you have calmed yourself down”.
Of course, there is no one solution to dealing with bullies, whether in the school yard or in the boardroom. The starting point, however, is to resolve not to let them get under your skin or to make you question yourself. Bullies have a way of creating urgency that is not real if they think it is to their client’s advantage to do so. In those circumstances, it is important to realize that and to take back control of the agenda.
I strongly recommend that young lawyers learn how to slow things down when they are dealing with a bully and, where possible, seek counsel from more senior lawyers who usually have some experience in dealing with the bullies in our profession.
Or you can all move to Buckhorn, but the legal scene here is kind of quiet.