You always hear this business axiom: “The customer is always right.” Whether true or not, you’re supposed to at least let the customer believe that he or she is correct. But in my experience, that doesn’t always work.
Before I went to law school, I was a banker. (That sentence makes me sound old, since I started law school 20 years ago this fall. Whatever.) Anywho, in my years as a banker, I frequently had to explain to customers the vagaries of the American banking system. “What do you mean my money’s not in my account? I just deposited the check. Of course it’s there!” No, sir, I’d have to say. Your money’s not there. Your check hasn’t cleared. The customer was very often just not right.
Turns out, practicing law isn’t much different. Your clients are often wrong. And your job as their lawyer is often to tell them that they’re wrong.
Even if it gets you fired.…
It’s not fun to have to disagree with your clients. They’re the ones paying your salary; you work for them. And it’s much easier to tell them what they want to hear. It makes them happy, and they keep paying you. But that’s not your job. It’s not your job to do what your clients want. Your obligation as a lawyer is to do what’s best for them. As with most obligations, that’s often the more-difficult path.
Several years ago, a new client came to our firm. It was a local company that made X-ray equipment and it was owned by a wealthy, mercurial businessman named Valerie Katz. Wait, what? Taken? Oh, right. OK … a wealthy, mercurial businessman named John Doe (sounds like a dead guy on Law and Order: Dubuque or something, but my colleague Val has taken all the good pseudonyms).
John Doe was upset that several of his company’s key employees had left to form a new competing business. The employees didn’t have noncompete agreements, but it appeared that they had deleted some computer records before they left and had diverted business away from the company to their new enterprise. John Doe wanted us to sue them for breaching their duty of loyalty and stealing trade secrets, and to get an injunction shutting down their new company.
Right from the start, we had some misgivings. While the employees’ departures from the company did look suspicious, some of the accusations didn’t ring true. While Doe wanted us to race into court and get an immediate TRO, we knew that we didn’t have enough evidence to have any chance of winning. To placate him, we filed our complaint in state court in Boston, but we didn’t seek a temporary restraining order. We told him that we had to complete our own investigation first, and maybe take some expedited discovery. We also told him that if our investigation came up negative, we wouldn’t go forward with a TRO or preliminary injunction. It’s not that we were afraid of losing; no one who litigates for a living is afraid of that. It’s that we weren’t going to commit an act of futility.
Sure enough, after a week of thorough investigation and talks with the employees’ lawyers and even some of the clients that Doe believed they’d poached, we concluded that nothing nefarious had happened. Everything was explainable and innocent. Yes, the employees had gone into competition with their former employer, and yes, they were trying to get some of the same business. But they hadn’t taken any secrets, they hadn’t improperly deleted any records, and they hadn’t diverted any business while they were still employed.
But Doe still wanted to go after them. D’oh.
We explained that there was no chance of winning. That it would be a complete waste of his money and time. And that it wasn’t the right thing to do.
Doe didn’t care. He was still angry that these guys he had trusted and taught the business to were now sticking it to him with their new company. Even if he wouldn’t end up successfully shutting them down, he might at least cause them to spend a lot of money themselves, and cause them a lot of stress and fear. He wanted to hurt them, so he wanted us to file for an injunction, even though we’d eventually lose.
So we fired him.
Because it was not in his company’s best interests to pursue vengeance. A futile motion for an injunction, plus all the time and money spent on discovery and hearings, was not going to help his business. It would only — maybe — salve his ego, and give him some pleasure at his enemies’ expense.
But it wasn’t our job to do what he wanted. We weren’t in the vengeance business. Our job was to help his company, and doing what he irrationally wanted wouldn’t accomplish that. When he wouldn’t take our advice, we cut him loose. Another lawyer had referred Doe to us, so we went back to him and said thanks but no thanks. That lawyer ended up taking on the case himself, and two years and maybe a quarter of a million of Doe’s dollars later, lost summary judgment with a scathing decision from the judge decrying the pursuit of the obviously futile case.
Many lawyers would have done what the client wanted. He’s the client, they’d say. He has a checkbook. A client has the right to do something stupid if he wants. Maybe so. But as attorneys, we’re not obligated to do what our clients want. We’re obligated to do what’s best for them.
A similar situation often arises in the context of settlement. In 17 years of litigating employment cases, I’ve often had to argue with clients to convince them to settle when they didn’t want to. I didn’t do this because I was afraid of going to trial or of losing the cases. I did this because in those instances, settlement was the best outcome for my clients. I know that I left a lot of money on the table by not letting my clients’ emotions get the best of them.
But I also know that I did my job, even when it was hard to do.
The client isn’t always right. And when the client is wrong, it’s your job to tell them. It’s not fun, and it may cost you fees or even get you fired. But it’s what makes you a professional.
Jay runs Prefix, LLC, a firm that helps lawyers learn how to value and price legal services. Jay Shepherd also spent 13 years running the Boston management-side employment-law boutique Shepherd Law Group. He writes the ABA Blawg 100 honoree The Client Revolution, which focuses on reinventing the business of law, and Gruntled Employees, a workplace blog. Follow Jay on Twitter at @jayshep, or email him at email@example.com.