September 16, 2010

How to Deal with Difficult Counsel

Lyle Harris

In Ontario, a client has sued her former lawyer for the costs awarded against the client in a suit the former lawyer launched against three judges, accusing the judges of conspiracy and fraud.  According to a release from Canadian Legal Newswire May 31, 2010, the action against the three judges was dismissed,  As a consequence of the dismissal, the client and her lawyer were ordered to pay $100,000 in assessed costs:  half to be paid by the client, and half by the lawyer.

In our own province, the Court of Appeal recently upheld a trial judge’s ruling that a lawyer was personally liable to pay costs for two failed applications when the costs were incurred “without reasonable cause” or where the lawyer had “caused costs to be wasted through delay, neglect or some other fault”.

In each of these cases, there was no doubt that the lawyers in question believed they were representing their clients zealously, as all lawyers are obliged to do.  However, for most of us, the duty of zealous representation has some reasonable bounds.  At some point “zealous” becomes “extreme” and the lawyers who continually take “extreme” positions become known as “difficult”.

Counsel who are have the reputation of being “difficult”  fail to make concessions which, according to civility and the prevailing case law ought to be made; and they make ordinary litigation a costly business.  At Harris & Brun, we have difficult opposing counsel in many of our files.  How should we deal with them?

A good start is to examine the Canons of Legal Ethics, found as Chapter 1 of the Law Society’s Professional Conduct Handbook.  Canon 4(1) reads:

 “A lawyer’s conduct toward other lawyers should be characterized by courtesy and good faith. Any ill feeling that may exist between clients or lawyers, particularly during litigation, should never be allowed to influence lawyers in their conduct and demeanour toward each other or the parties. Personal remarks or references between lawyers should be scrupulously avoided, as should quarrels between lawyers which cause delay and promote unseemly wrangling.”

 Canon 4(3) reads in part:

 “A lawyer should avoid all sharp practice and should take no paltry advantage when an opponent has made a slip or overlooked some technical matter.” 

 These are high standards for all of us, and should form the basis of how we deal with difficult counsel.  Courtesy, patience and self-control ought to be the hall-marks of any attempt to deal with difficult counsel.

Lina Giustra of Harris & Brun has been dealing with difficult counsel for over 23 years.  She says, “patience and persistence are the keys to dealing with difficult counsel.  I find that difficult counsel tend to attack counsel rather than attacking the issues.  The human reaction is to want to respond in kind but that is counter-productive and merely escalates the conflict.” 

 At Harris & Brun we have evolved specific strategies that work well in dealing with difficult counsel.  If you wish a consultation with Lina Giustra or any of the other lawyers at Harris & Brun in a matter that has a difficult opposing counsel, click here.

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