I’ll use three real-life hypos — situations that I’ve lived — to explore the question.
First: I was a partner at a law firm. The client had just hired a new, junior in-house lawyer to oversee (among other things) the set of cases we were defending. The client called an all-hands meeting. Four or five of us from the firm attended, as did the general counsel of the company, a couple of deputy general counsel, the global head of litigation, and the month-old, new in-house guy, who we didn’t yet know from Adam.
My senior partner spoke first: “Before we get started, I just want to say that [the new, junior in-house guy] is a great addition to your law department. It’s not often that you work with someone for just a few weeks and immediately know that you’ll be able to do better work, more efficiently, with the new person on board. But you did just that with this hire. Congratulations! What a great lawyer!”
The junior in-house guy was beaming ear-to-ear. Later, in private, your senior partner says to you: “That’s how you cement a client relationship.”
So, what do you say: Permissible (intelligent, praiseworthy) flattery? Or unethical lies?
Second: You work in-house. The head of a business unit is screaming at you to settle a case: “We could lose! I’d have to testify at a deposition! The emails are packed with nasty stuff! If we settle — especially if we overpay for the case — the plaintiff is a potential client. The plaintiff might decide to hire us, and we’d get more revenue!”
You fight back with all your will and political capital: “The motion to dismiss is pretty strong. If we win at this stage, there won’t be any discovery. If we lose the motion to dismiss, we’d still have a chance to settle then. Let the court rule on the motion.”
The client curses you, but relents. The court then grants the motion to dismiss, and everyone is high-fiving about the great decision to roll the dice.
You’re drafting your congratulatory email, which will be sent to the CEO, the CFO, and all of the other guys who run the joint. You close the email with these words: “Outside counsel was Bigg & Mediocre. John Doe supervised the case for our law department internally. And [head of business unit who desperately wanted to settle] made the gutsy decision not to make a settlement offer and instead to let the court rule. Congratulations to all!”
Can you comfortably press “send,” and thus butter up a guy who could help you in the future? Or are we now into the realm of impermissible lying?
Last example: You and clown represented co-defendants in a big case. Clown was a disaster. He wasn’t just bad; he was horrible in utterly unpredictable ways. Before one status conference, you told him: “Here’s one argument that the other side hasn’t yet noticed, and I sure hope they never do. But, on the off-chance that the issue comes up during the status conference, we have only one, paper-thin, response. If the other side makes argument X, we’re basically dead, but we can briefly stave off defeat by saying anti-X.”
The status conference is ending; people are packing up their briefcases. Fortunately, no one mentioned the issue that made you nervous. Incredibly, clown stands up: “Your Honor, just one last thing. The other side didn’t mention X today. I just wanted to say that, if they’d mentioned X, we would have said anti-X.”
The plaintiffs’ lawyers jaws have dropped, and they’re grinning like Cheshire cats. You’re keeling over and grabbing your chest, because you feel “the big one” coming on. You stagger on.
Five years later, clown sends you an email: “I’m in contention to be nominated as a federal judge. You and I worked together on that big case a few years ago, so I thought you’d be in a great position to write me a letter of recommendation. I can count on you, can’t I?”
Can he count on you? This guy might be a federal judge, for heaven’s sake. Is it okay to curry favor with him? Or do you owe it to yourself, or your country, or your God not to champion the clown’s cause?
Here’s my confession: When I first put fingers to keyboard to write this column, I was going to defend my first hypothetical as an example of a clever lawyer sucking up to a client in a smart and useful way. As I typed, I found myself sliding down the slippery slope, and I finally decided I wasn’t quite sure where I drew the line. So I’m not drawing any conclusions here. I’ll just leave it to you, in the comments below, to hash it out.
Mark Herrmann is the Vice President and Chief Counsel – Litigation at Aon, the world’s leading provider of risk management services, insurance and reinsurance brokerage, and human capital and management consulting. He is the author of The Curmudgeon’s Guide to Practicing Law (affiliate link). You can reach him by email at [email protected].