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The Practice of Law

David and Goliath in the Legal Profession

In my early years of practice, I received a phone call from a friend who practiced union side labour law.  He had a question about Civil Law and having recently graduated from McGill with a Civil Law degree in addition to my Common Law Degree, I was able to answer his question.  He appreciated my help.  Or so he said.

Not too long after that, I had a question about labour law, so I called my acquaintance to pose a hypothetical question to him.  When I asked him the question, he recognized that the answer would be used to assist an employer in its dealings with a union.   He flat out refused to answer the question.  Not because there was a conflict of interest.  Just because on principle he refused to do anything which might possibly be used to help anyone in management.  I was disappointed that his appreciation of my prior help did not run particularly deep, but I did have to admire his resolve to adhere to his principles.

We lawyers are hired guns.  Most of us are comfortable representing a franchisor this week and a franchisee next week, a landlord the week after and a tenant the week after that. 

Unlike my acquaintance, when lawyers insist on choosing a side and sticking with it, they do not usually do so as a matter of principle, but because business considerations demand it.  For example, if you have earned your reputation representing franchisors, it may be bad for business if you sue a franchisor and set a precedent that will be used against franchisors in the future.  Or let’s say that you do a lot of work for Banks.  Your banking clients may not take favourably to you acting against a Bank and trying to establish that a common banking practice is improper.

Another reason that lawyers choose sides is so that they will not be conflicted out of a major file. For example, if a firm has a deep expertise in insolvency and may have a good shot at being appointed lead counsel for an airline that is on shaky grounds, they will feel pretty stupid if they take on a file for a consumer group making a claim against the airline and are then conflicted out of the much more lucrative role of acting for the airline or its monitor in the insolvency.

So, you see that while in theory lawyers do not have to choose sides, in practice some lawyers must.  And that means that there are a large number of lawyers who will not be available to take on a case when a client comes calling.

Furthermore, at some (or all) large law firms, there is a reluctance to take on matters for smaller clients for many reasons, including a desire to avoid being conflicted out of larger matters. Someone with a legal problem which is big for them but small for Big Law may find that they do not meet the financial criteria to become a client of a large firm, even if they are willing to pay the fees.

But then again who cares?  There are a lot of lawyers out there. Surely a client who needs a lawyer can find someone to represent them.  You would think.

The problem is that in some areas of the law, there are only so many lawyers who have deep experience and are really good at what they do.  If a client has a complex matter which requires a particular expertise, it is not unusual for the client to discover that the number of knowledgeable lawyers who are available to take on the matter may be quite limited.

Now those who have read some of my prior articles will be aware that I am not exactly a banner waving member of a fan club for large law firms when it comes to representing entrepreneurial clients.  However, large law firms exist for a reason, and they dominate the profession precisely because they are better than anyone else in addressing certain types of legal matters.  Moreover, I will readily acknowledge that there are many situations where most, if not all, of the best lawyers who practice in the relevant area of law will be in a large firm.  

Smaller clients looking to take on, or defend against, a major corporation often find themselves scrambling to find good counsel.  Of course, there are great counsel in some smaller law firms, including both general mid-sized firms and specialized boutique firms, and together they cover quite a wide scope of legal practice.   But still, there are areas of practice where there are not too many experts outside of the larger firms, and the experts in the larger firms are just not available to act for the smaller clients.

The bottom line:  In many ways it sucks to be David going up against Goliath.  On top of all of the other advantages that Goliath has, he may also have the better lawyer.  Just another application of two of my favourite principles: (1) The Golden Rule (he who has the gold, makes the rules); and (2) We have a legal system, not a justice system.

That being said, small clients going up against Goliath with the best lawyer that they can find to handle their case can take comfort in the fact that David did slay Goliath.  Unless the story is a myth.

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