Tom Wallerstein

As readers of this site’s “Lawyer of the Day” posts everyone knows, lawyers and their clients can be guilty of all kinds of outrageous behavior. Litigation especially, with its inherently adversarial nature, seems to bring out the worst in people.

Bad behavior by lawyers comes in many forms. To non-lawyers, most if not all lawyers are jerks or worse. All bad behavior by lawyers is lumped together. But there are important differences.

A lot of bad behavior should be avoided simply because it is counter-productive. For example, an attorney may refuse to offer voluntary extensions of time to respond to discovery, or to a complaint. Aside from violating a principle of professional courtesy, that behavior also is ultimately self-destructive. In litigation, what comes around goes around, and granting extensions of time that will not prejudice your client is a prudent way to ensure later modest courtesies for yourself when needed.

Declining modest extensions to respond to discovery requests is especially unwise, as the responding party can always just serve objections, with the intention of serving substantive responses before a motion to compel can be filed. Because there is no instantaneous remedy for a failure to serve substantive responses, you often have little to gain by refusing a request for a modest extension of time.

Continue reading to find out when bad behavior crosses the line….

Another kind of supposed bad behavior is actually nothing more than zealous advocacy. I don’t necessarily believe that taking extreme, aggressive, or uncompromising positions in litigation is unethical or unprofessional. If a client insists on fully litigating every issue and absolutely refuses to compromise on even the most minor points, that is his prerogative.

I make a clear distinction between my personal behavior and the position my client pays me to advocate. Provided my client is not asking me to do anything unethical, I have no qualms about advocating positions my adversaries deem to be unreasonable. I’d like to think that I’m able to effectively advocate even objectively unreasonable positions without opposing counsel taking personal affront or deeming me to be personally offensive.

A third kind of bad behavior, by contrast, has everything to do with the lawyer: being rude, offensive, profane, belligerent, sexist, condescending, etc. Recently, for example, we’ve read about lawyers who refer to female adversaries as prostitutes and worse, and lawyers who taunt and physically threaten their adversaries over issues as mundane as deposition scheduling. Shocking and deplorable though such conduct may be, I don’t lose too much sleep over people showcasing their personality flaws.

Sometimes insensitivities may reflect cultural differences. One time, opposing counsel asked me how I would like him to let me know when something happened. Frustrated by a long pattern of obfuscation, I replied sarcastically, “I don’t care how. Email. Telephone. Smoke signals. Whatever!”

I received back a lecture about my cultural insensitivity and professed outrage over my reference to “smoke signals.” I was mortified that I had inadvertently offended, so much so that I immediately consulted with someone well known to be particularly sensitive and thoughtful about Native American issues.

More recently, I was chastised for sending a notice of deposition with a date of my own choosing, along with a message to opposing counsel to let me know if the date I picked was not convenient. My adversary argued that professional courtesy required that a formal notice should be sent only after conferring about potential dates. The difference between conferring pre- or post-notice strikes me as six of one versus a half-dozen of the other, but my point is that sometimes civility is in the eye of the beholder.

As a litigator, you have to have a pretty thick skin and be able to tolerate insulting, rude, and belligerent behavior. And indeed, I do have a pretty high tolerance for bad behavior and very rarely do I take litigation affronts personally.

But I make a clear distinction between litigation conduct that is annoying, unprofessional, or even deplorable, on the one hand, and conduct that crosses an ethical line. The line I have in mind consists essentially of lying, especially to a judge, and making unwarranted accusations of clearly unethical conduct.

A lot of non-lawyers seem to think that lying is precisely what lawyers are paid to do. I’m not so cynical. Lawyers can be expected to exaggerate, and sometimes selectively disclose information, and even sometimes leave a false impression. A judge expects adversaries to slant their view, and she will know the truth must still lie somewhere in between. But I think telling pure falsehoods crosses a line.

I recall one matter where my adversary habitually filed false declarations. He would miss a discovery deadline and then, a week later, serve the discovery with a falsely backdated proof of service. We always kept the postmarked envelopes, but he would claim that his small town post office must have misplaced the mail. One time he even included facts in the discovery response that we could prove post-dated his false proof of service. To me, that lawyer’s conduct crossed the line.

Another time, I represented a client accused (wrongfully, of course) of misappropriating trade secrets. Opposing counsel was seeking a TRO, and at the hearing, he told the judge that his expert report showed that my client had downloaded the critical software code shortly before he left his job. In actuality, the report showed only that my client accessed the code, not that he downloaded it. The difference was critical and, in my opinion, opposing counsel crossed the line of zealous advocacy.

The other line I draw is to falsely accuse someone else of a willful ethical breach. Because I take honesty to the tribunal so seriously, I consider accusations of lying to the court to be “fighting words” that should not be uttered lightly. Recently I heard an attorney accuse another of intentionally ignoring a judge’s order to provide notice of a ruling. The charge was false, and, in my opinion, counsel crossed the line by making the charge because she knew it wasn’t true.

Biglaw, as opposed to smaller firms and boutique firms, generally is thought (especially by solo or small-firm practitioners) to exhibit more of the bad behavior that I don’t personally consider to be beyond the pale. Solos will complain, for example, that their Biglaw adversaries are less civil and courteous, less likely to grant extensions, and generally more adversarial.

To the extent that the Biglaw stereotype has any truth, it likely has to do with the clients and economics involved. Biglaw firms being paid by the hour have less incentive to cooperate than do small firms being paid on a contingent fee basis. A corporate client of Biglaw is more likely to be willing to finance more tenuous legal arguments or tactics. And working demanding hours under high stress conditions may make an attorney more likely to exhibit some of their less attractive personality traits.

Economics also likely plays a role in explaining why solos and small-firm lawyers are more often the ones accused of improper conduct like backdating proofs of service or misrepresenting case law to the court. Smaller firms, especially when litigating against Biglaw adversaries, lack Biglaw resources and often are looking to save costs, and time, at every turn. That dynamic, I suspect, can increase the pressure to cut corners in innumerable ways.

Further, a firm handling a matter on contingency has a more direct financial incentive to engage in unethical conduct on their client’s behalf than does a firm that is being paid by the hour regardless of outcome.

Whether in Biglaw or small, I guess everyone has to draw their own lines, and admittedly no one died and made me the Grand Arbiter of Litigation Conduct. For years I practiced at a firm known for an aggressive, take-no-prisoners litigation style. I respect that style and I’m not judgmental by nature. But it’s precisely because I have such a high tolerance for bad behavior generally that I refuse to accept that it’s ever okay to cross the line.


Tom Wallerstein lives in San Francisco and is a partner with Colt Wallerstein LLP, a Silicon Valley litigation boutique. The firm’s practice focuses on high tech trade secret, employment, and general complex-commercial litigation. He can be reached at [email protected].


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