I was once hired by a dentist to help him disassociate from his partner. I will refer to my client as the “Good Dentist” and to his partner as the “Dentist from Hell.”
At the time that this story took place, many dentists in Ontario financed the equipment required to operate their dental practice through a particular equipment leasing company who for the purpose of this story I will refer to as “Leaseco.”
While we were negotiating the terms upon which the Good Dentist would leave the partnership and set up his own dental practice ‘someone’ reported to the Royal College of Dental Surgeons of Ontario that the Good Dentist was in fact a bad dentist. In fact, according to the complaint, the Good Dentist was the worst dentist who ever lived. Although we could never prove it, we were fairly sure that ‘someone’ was the Dentist from Hell.
At the very same time, the Good Dentist was also dealing with Leaseco to finance the equipment which he would require for his new practice. Unfortunately, Leaseco suddenly expressed a reluctance to proceed with the financing. They told him that they had received a report from ‘someone’ that the Good Dentist was under investigation by the College and might lose his license to practice dentistry.
Despite all of this nonsense, I was doing pretty well in the negotiation with the lawyer for the Dentist from Hell. I had found a provision in the partnership agreement which said exactly what I wanted it to say. Now, deep in my heart I knew that the provision was poorly drafted, made no business sense and was probably never intended to apply in the circumstances. But, on its face it certainly did appear to apply, and even if it did make no business sense, it made no business sense in our favour. I had staked out a great position and was digging in and holding on with all of my strength. The Dentist from Hell’s lawyer appeared to be buying in and caving in.
Now just about when I had the Dentist from Hell’s lawyer on the ropes and ready to concede to a more than reasonable set of exit terms for my client, he suddenly disappeared from the scene and was replaced by a much more sophisticated lawyer named Marty.
Marty had about 10 years more experience than I had at the time. He was smart. And capable. And smooth. I knew Marty from having articled at his firm years before, and I suddenly had the sinking feeling that my cakewalk over the Dentist from Hell’s lawyer was over.
And I was right. As I recall, Marty called me and laid it all out for me in simple words to make sure that I would not miss anything.
“Murray,” he said. “You know as well as I do that the provision of the partnership agreement that you are relying upon makes no business sense whatsoever and was never intended to apply in these circumstances. You have done a good job pushing that as far as you have, and I give you full credit for that. However, the way I see it is that if you continue to push that interpretation, you will leave me no choice but to go to court and try to convince a judge of what we both know to be true – that this provision should not apply. If you want to gamble that I will lose in court, that is your right. Let me know if you want to play it that way. But I suggest that we would both be serving our clients better if we negotiate a deal which makes sense for everyone. The ball is in your court. What do you want to do?”
The jig was up. I had been getting away with way too much and I had been called on it. So, I told Marty that when ‘someone’ retracted their complaint to the College and ‘someone’ told Leaseco that he had been mistaken, I would be willing to listen to his terms. The deal got done. Everyone was happy, except perhaps for the Dentist from Hell who would only have been happy if the Good Dentist was expelled from the partnership, received none of his capital back, was not permitted to solicit any patients, never practiced dentistry again, and was banished from Canada.
I learned a few things from that encounter. I learned that Marty was a much better lawyer than the Dentist from Hell’s first counsel. I learned that sometimes when you have an advantage, it may be best not to push it too hard and force the other side to go out and hire someone like Marty. I also learned that when dealing with a client who is caught in the weeds (in this case by a nonsensical agreement) the first step is to look at the problem from 10,000 feet up and figure out what leverage you have to recast the problem in a more favorable light.
Although I could never know for certain, I always suspected that Marty had a conversation with the Dentist from Hell before he was retained that went something like this: “You have been taking completely ridiculous positions, perpetrating mischief and pissing everyone off. You have been using a lawyer who let you get away with that. You drove the other side to the position that they are now taking. It is your own fault that Murray has you and your lawyer over the barrel. This crap with the College and Leaseco has to end. If you want my help, you are going to have to put an end to this bullying, you are going to shut up and let me do my job and negotiate a reasonable resolution to this mess or you can find yourself another lawyer.”
One final lesson: As lawyers, we have to take, and follow, instructions from our clients. However, we also have to know when to give them instructions and tell them that if they do not follow them, we will walk away.
They sure don’t teach you this stuff in law school.