Wanton hostility or robust disagreement? Where to draw the line when battling for your client

Michael Andrew

Late last year, Auckland-based employment lawyer Shelley Eden received a phone call from a fellow practitioner.

Highly emotional and aggressive, the caller proceeded to berate Eden about the conduct of her client and the unfairness of the case and, as Eden says, “rant and rave” until she could no longer follow the conversation.

The caller finally settled down, but the experience rattled Eden so much that she posted about it on LinkedIn. Within days, her post had gained hundreds of likes and dozens of comments from fellow lawyers sharing similar experiences.

Despite the intensity, Eden says the phone call was not an anomaly. Throughout her career she has had frequent run-ins with confrontational practitioners demonstrating improper and highly emotional behaviour.

“This has occurred ever since I started practice,” she says. “I have had this problem repeatedly with people who just take a really unprofessional approach – whether you call it bullying, whether you call it aggression.

“I think it’s endemic to our profession.”

 

The law versus the reality

Legislation governs the conduct of legal practitioners through the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008. Key requirements mandate that lawyers act with respect, courtesy and honesty towards colleagues, avoid improper or unnecessarily embarrassing conduct and manage conflicts of interest.

However, Eden says the reality of legal practice is far different on the ground, where pressurised situations can lead to emotional interactions that may breach the rules requiring respect and avoiding improper conduct.

And the main reason such behaviour emerges, Eden says, is when lawyers take on the emotions of their clients.

“The lawyer who called me acknowledged that he was emotionally involved in his case, which is a huge problem in itself. You lose all your professional objectivity; you lose your cool. It does not help your client and I think you do a terrible job.

“A passionate, convicted lawyer is a great lawyer. But an emotional lawyer is a terrible lawyer.”

While the legislation is to be heeded, Eden says it comes down to emotional intelligence and practitioners having their own set of tools to view a case objectively, rather than putting themselves in the middle of it.

“We need to learn to regulate our stress and not bring it into a case. We can maintain civility and respect while being really good lawyers and advocates.”

Eden says excessively confrontational behaviour between practitioners is not unique to employment law – although it most often emerges in litigious situations.

However, where employment law is more prone to confrontation is in the diversity of practitioners – such as employment law advocates – who operate in this practice area.

Unlike lawyers, advocates are not regulated; nor are they subject to the same rules under the Lawyers and Conveyancers Act. This has created what many in the sector view as a “wild west”, where certain advocates have been allowed to abuse colleagues and clients with impunity.

Last year, LawNews reported on a dispute between employment lawyer Catherine Stewart and prominent advocate Lawrence Anderson, who had led a sustained campaign of “harassment” against Stewart – and many other practitioners in separate incidents.

The Employment Court ruled in Stewart’s favour, with Judge Kathryn Beck saying she considered Anderson’s conduct to be “most improper and indicative of someone who has entered the arena in their own right, as opposed to that of the client. This is entirely unacceptable.”

While Eden says certain advocates are problematic, it comes down to the individual. Standards around respect and civility should extend to everyone operating within the sector.

“We have employment advocates in my sector, some of whom are excellent and some of whom are very bad.

“Like every profession, there are some who ruin it for everybody else. There’s no educational requirement to be an advocate and anyone can become one, but I am ultimately in favour of advocates, and I believe they need to be there.”

 

Resilient and detached

While confrontations can emerge in all sectors of the law, a practice area where emotions run particularly high is family law.

Not only are clients – usually vulnerable individuals – in the middle of traumatic and stressful family breakdowns, but they are often desperate for urgent solutions that cannot be achieved.

Practitioners need to be resilient and detached to avoid taking on their clients’ stress, and acting blindly in accordance with their clients’ wishes, which can sometimes be irrational.

Barrister Stuart Cummings says family law is particularly fraught with high emotions and it’s not uncommon for practitioners to take issue with the actions of their colleagues if they appear to compromise the interests of any children involved.

“Family law is different from vendor-and-purchaser disputes or straight litigation because it’s far more ripe for playing the man, not the ball.”

An example, he says, is during Care of Children Act 2004 (CoCA) proceedings, when feuding and hostile parents will be desperate to secure some kind of decision in their favour. Cummings says it’s a lawyer’s job to try and defuse the client’s anger and anxiety, rather than succumbing to it or acting upon it.

“I like to think I keep a pretty close eye on doing what’s right, not necessarily what my client wants.

“I can look back through cases I’ve done and know where I’ve really sailed close to the wind in terms of what’s right and what’s wrong. You get those really touch-and-go areas, where you’re getting into the area of ethics and stuff, and it is where it gets unpleasant.”

He has observed child custody disputes play out in court where counsel, following the instructions of their client, have strategically appealed decisions to delay proceedings.

“That lawyer might say, ‘I was following my client’s instructions, and that’s what we’re paid for’. But doing something like that is a complete waste of time and defeats the purpose of the Act.

“It doesn’t pass the sniff test and that’s not what a lawyer should be doing.”

Another lawyer who agrees that family law can be particularly adversarial is Lady Deborah Chambers KC.

She says some lawyers are inclined to take on their clients’ cause excessively, but it’s seldom in the interest of the client.

“I did read some research on this, which said that family lawyers were way more inclined to get personal than people who practise in other areas.

“It wasn’t New Zealand research, but I suspect it applies here too, and I found that quite interesting. Maybe that’s because we’re an emotionally charged area. Some lawyers definitely get personal and play the person, not the ball.”

Having said that, Chambers believes confrontation and adversarialism have always been part of the law – even beyond the Family Court – and it’s a fine line between wanton hostility and healthy, robust disagreement.

She recalls working in civil law at Russell McVeagh and observing many of the Queen’s Counsel at the time falling out with one another. She says it usually occurs when the client is a person rather than a corporate or organisation.

 

Batting for the client

While most of the commenters on Eden’s post expressed agreement or sympathy, some outliers rejected the idea that there was anything wrong with confronting another practitioner on behalf of a client.

One commenter observed that assertiveness is warranted, especially in certain circumstances.

“If you are acting for a vulnerable/weaker party in an overrun jurisdiction who has a strong case but is facing dilatory tactics and/or stonewalling by the other side, an assertive approach is not only justified – sometimes it is practically necessary,” the comment read.

“There is a growing tendency amongst some lawyers to characterise firm and competent representation as ‘aggressive’, ‘inappropriate’, ‘unnecessary’.

“Calling out unlawful behaviour, highlighting weaknesses in your opponent’s case, challenging bare assertions/denials, pushing back on one-sided deeds etc… none of that is wrong or unethical. It is precisely what lawyers should be doing.”

Chambers shares similar thoughts, saying that as long as it’s not bullying or abuse, assertive argument on behalf of a client is part of a lawyer’s job – especially if there’s a power imbalance.

“You should be batting extra hard for your client to even the odds, particularly if it’s an individual up against a big organisation or against a more powerful spouse, because they’ve got control of the chequebook or the children, or your client might not be good at standing up for themselves.

“Quite often, the best way to do it is to take on the other lawyer, and be assertive with them, and argue forcefully. That is very different from bullying. The word ‘bullying’ is so loaded, and people use it to try and make people pull their horns in, when actually they should have their horns out.”

While the perception of bullying is subjective, Chambers says no one should ever be subjected to outright rudeness, or situations that descend from professional courtesy to personal attack.

 

A safe space

One area of law that appears to robustly uphold standards around respect and collegiality is criminal law.

Despite being a hugely controversial area that receives the most attention from the media and the public, the criminal bar enjoys a sense of camaraderie among opposing lawyers, with disagreement totally limited to the courtroom.

Criminal lawyer Samira Taghavi says this collegiality is one of the most heartening aspects of her profession.

“We genuinely lean on one another. Most of us have strong networks of colleagues we can call to debrief, to share the pressures of practice and at times to vent our frustration with the system.

“Even where we stand on opposing sides – defence and prosecution, or Crown – the relationships are overwhelmingly respectful and professional. We may argue robustly in court, but we do so with grace and integrity, and we do not carry those adversarial moments into our personal relationships.

“That, to me, is one of the quiet strengths of criminal law: we fight hard for our respective positions, yet we continue to look out for one another.”

 

From the judiciary

Allegations of aggressive and hostile behaviour among lawyers is one thing but when it comes to the courtroom, an imbalance of power can come into play.

Last year, retiring District Court Judge Mary Beth Sharp called out the growing culture of courtroom bullying that was leaving many young lawyers distressed.

Speaking at a farewell dinner hosted by The Law Association, Judge Sharp said she had heard from young lawyers who felt bullied in court and said as a young judge, she herself had received similar treatment from senior colleagues.

A culture of toughness had long defined parts of the legal profession and too often it excused cruelty, she said. Her message was clear: professionalism and empathy are not mutually exclusive.

Cruelty from the judiciary has at times extended beyond the courtroom as well. Last year, Christchurch barrister and new mother Helen Bennett took to social media to share her experience of having a traumatic birth and a very vulnerable newborn in the Neonatal Intensive Care Unit for three weeks.

Despite her circumstances, her applications to have a hearing set down at a later date and to be done via VMR were rejected by both the presiding judge and the Crown counsel, who said she would need to instruct an agent.

Bennett told LawNews that instructing an agent would have meant losing out on the work. She is the family’s primary earner and had not intended to take maternity leave for that reason. It would have also meant a huge amount of administration to hand over the case to a replacement.

“If it got reassigned to a new lawyer, they would have to start over from square one – read the 1,000 pages of disclosure, go through the 50 CCTV videos, meet with the client again, then prepare the sentencing submission, so it’d actually be a duplication in terms of my bill to Legal Aid.

“It also means the client doesn’t have continuity of counsel, which can be frustrating for them as well.”

Bennett understands why so many women end up quitting law, saying while she hasn’t thrown in the towel, the whole experience made things extremely difficult during a time when things were already very tough.

“I naively had another baby, thinking that maybe the courts would be understanding of the circumstances because we have heard the chief justice talking about how there’s more women in law now and we’re trying to retain women in law.

“The whole system feels like it’s against you for trying to have a family and make it work and have a little bit of flexibility, but also do justice to your clients and retain continuity for them.”

Bennett feels the judge in question displayed a lack of empathy which many other young lawyers have been subjected to.

 

Solutions

Bennett’s experience and the reports shared by other counsel have not been ignored, and steps have been taken to address the issue of judicial bullying.

Taghavi, who has been outspoken about judicial conduct, says the chief judge has taken concerns very seriously and remains actively engaged.

“Both the Chief and Judge Malosi have made themselves accessible and have opened the door for constructive dialogue. Where concerns arise, we endeavour to address them at a local level and to date we have not needed to escalate matters further.

“Communication has been key. Increasingly, practitioners feel comfortable raising issues and seeking support. In some instances, what initially appears as bullying has proven to be misunderstanding, and through direct conversation meaningful progress has been made.”

She adds that a recent forum convened between the profession and the judiciary – unprecedented in its openness and attendance – was a powerful step forward.

“The significant turnout of both lawyers and judges strengthened relationships and many practitioners left feeling heard, respected and validated.”