Small Law Firms

Lawyers Should Try Not To Badmouth Predecessor Counsel

In reality, clients often do not want the benefit of hindsight.

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Many times in the course of a representation a lawyer may need to take over work that was previously performed by another attorney. For instance, sometimes a lawyer needs to litigate matters involving a contract that was negotiated and drafted by a different attorney. In other instances, lawyers need to assume a representation after a prior attorney withdrew from the representation. Although it may be tempting to do so, lawyers should refrain from badmouthing predecessor counsel, not only because it is the right thing to do but because this can help you form better connections with clients.

There are a variety of reasons why lawyers would want to point out how a prior attorney messed up or did not live up to expectations for a client. The market for legal services is very competitive, and lawyers are constantly competing with one another for work. If an attorney points out how a prior lawyer failed to perform the best work, perhaps clients will know that they should use the new lawyer for matters in the future. Moreover, attorneys may think that if they explain how things could have been improved in a matter, the client will learn about best practices in the future.

In reality, clients often do not want the benefit of hindsight. Most situations faced by a client are unique, and getting told how they could have done things better might make a client feel bad that they did not get solid advice earlier on. For instance, many tenants timely made rent payments during the COVID-19 pandemic, but some tenants withheld rent payments. Indeed, many businesses and some individuals did not make full rent payments for large swaths of the COVID-19 pandemic since protections were put into place for renters, and it was difficult for landlords to institute eviction proceedings for much of the pandemic. As a result, many businesses and some individuals withheld rent to have a bargaining chip to renegotiate lease terms that ensured that landlords and tenants “shared the pain” throughout the pandemic.

If an attorney was approached by a client who had made timely rent payments during the COVID-19 pandemic on the advice of counsel, informing this client that many tenants had not paid the full amount of rent would do the client little good. However, conveying this information could make a client feel bad about their situation since they cannot go back in time to change the situation. As a result, if a client cannot fix mistakes by predecessor counsel, it is especially important not to badmouth prior lawyers since this might just generate bad blood between clients and their lawyers.

In addition, badmouthing a prior lawyer might not look good to clients, especially if clients do not understand how a prior lawyer messed up. Badmouthing another lawyer might reflect poorly on the character of an attorney, and clients may not wish to associate with such an attorney. Even if the prior lawyer messed up big time, badmouthing can still come across as poorly.

For instance, earlier in my career, I had to litigate a case that involved a contract negotiated by another lawyer. The contract was absolutely abhorrent. Not only were there goofy spelling and grammatical errors all over the document, but the contract did not include standard language that I had grown accustomed to seeing in similar contracts for similar deals. The contract was practically written in crayon, and I was stuck with the consequences of the unartful drafting.

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Partially out of my own frustration with how badly the contract was written, and partially to show my client my experience with these types of deals, I conveyed how the contract was poorly drafted. However, I suspected my client just thought I was trying to throw the other lawyer under the bus or make excuses if I was not able to achieve a positive result in the matter. I probably would have been better off not discussing how poorly written the contract was even though the client could have learned from how the prior attorney messed up.

Also, and not to be too lofty, badmouthing another lawyer is often beneath the dignity of the legal profession. Although some people may not hold the legal profession in such high regard, it is still one of the learned professions, and lawyers should conduct themselves a certain way out of respect for other legal practitioners. As a result, lawyers should refrain from badmouthing lawyers, simply because it is the right thing to do.

Of course, if a lawyer really screwed up and a client needs to know about it to improve the client’s situation or even to pursue their options with respect to malpractice claims, then it make sense to point out a predecessor’s mistakes. However, in many situations, it does not pay to badmouth prior counsel. This might not look good to clients and does not reflect well on the legal profession.

Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

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