Law Blog – Business Law & Litigation

Let Your Lawyer Do The Talking — It’s A Snap!

In today’s sophisticated, fast-paced and costly world of commerce, some people believe they can deal with legal matters on their own by working directly with an opposing party or lawyer. Presumably, the idea is that a matter might be addressed more efficiently or affordably this way than if the party engages their own lawyer to deal with the matter. This situation frequently plays itself out even when (and, ironically, at times precisely because) the party has used a lawyer before; one thinks one has enough knowledge and experience to deal with a new matter without a lawyer. However, after many years of seeing people actually worsen matters by trying to deal with them on their own, this strategy almost always backfires in some way or, at a minimum, an outcome is “achieved” on terms much less favorable to the unrepresented party.

It is a particularly perilous proposition when a party believes they can deal with an opposing party’s lawyer. A popular proverb comes to mind: the lawyer who represents himself has a fool for a client.¬† How much more is this true for non-lawyers who represent themselves in matters that have legal issues or implications.

First, parties dealing with an opposing lawyer may, in the very attempt to resolve a problem on their own, make matters much worse for themselves, not just by failing to achieve a result but, in the process, by unknowingly making factual or legal admissions against their own interest, such as by providing self-compromising evidence (even if only communications made to the opposing lawyer) that can harm the disclosing party in the very matter that is at issue. This is particularly true if the matter can find no resolution without litigation and/or is already in litigation. And, even if such admissions are not immediately used in litigation, they may lie in hibernation¬†for months or years before they come back to haunt the admitting, unrepresented party. In this regard, note that when the admitting party is represented by counsel, even negative statements made by the party’s lawyer cannot work against the client because the client is not the one who made the statements. So, at worst, the client has a lawyer who misspoke, but this has not really harmed the client’s interests. The client can always maintain that the lawyer simply misspoke.

Next, as perhaps seems obvious, a party dealing with an opposing lawyer may be out-foxed by an opposing lawyer no matter how straightforward s/he may seem, and no matter how smart, sophisticated or capable the party believes s/he is. This is not necessarily because the opposing lawyer is smarter or more sophisticated than the self-represented party; it is very often just that the opposing lawyer is not personally invested in the matter at hand and, as a result, has a much broader, general perspective of the facts and issues in play and how such matters can be used to gain advantage for their client. The self-represented party is necessarily restricted by their own myopia which, by definition, such a party cannot see because they lack an objective perspective.

All of these problems and risks can almost certainly be avoided if the unrepresented party merely utilizes the assistance of a knowledgeable, experienced lawyer who is already familiar with such pitfalls and who has used tried and tested legal methods to avoid these very risks and problems.

These observations would not be complete, however, without at least a brief discussion of legal ethics rules (yes, some think that’s an oxymoron) which are supposed to guide attorney’s ethical conduct vis-a-vis their own clients and other parties. For example, these rules typically bar lawyers from dealing directly with a party who is represented by counsel; in California, this is in the Rules of Professional Conduct, Rule 2-100. However, these rules do not prohibit lawyers from dealing with an opposing party if the lawyer does not know that the other party is already represented by counsel. And of course if the other party affirmatively discloses that they are not represented by counsel, there is no rule which prohibits a lawyer from using his trained skills against the unrepresented party in order to obtain the best possible result for his client. A good lawyer going beyond the letter of the law might suggest that the unrepresented party get the advice of their own counsel before concluding a matter with the represented party, but there is no legal obligation to do this. Stated otherwise, it is not a lawyer’s or his client’s responsibility to be fair or “watch-out” for another party’s interests in any way. That is the job of the other party, so they proceed at their own risk if they negotiate on their own without utilizing their own lawyer.

These considerations may seem obvious. However, they are disregarded by more people than one might think. Whether this is due to excessive frugality, impatience or self-confidence, it is a pitfall for even the most experienced and sophisticated of parties, including lawyers themselves. It is a reminder that, when dealing with significant business or legal matters, it is almost always best to utilize the assistance of counsel. In the end, the prudent and discerning consumer of legal services can frequently save much more money, time and hassle by engaging counsel. Talking out of turn is bad; talking without a turn is worse. Let your lawyer do the talking — it’s a snap!

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2 responses to “Let Your Lawyer Do The Talking — It’s A Snap!

  1. Anna November 9, 2012 at 9:06 pm

    very interesting.

  2. ihwiner November 11, 2012 at 10:45 am

    Rule 2-100 Communication With a Represented Party:
    (A) While representing a client, a member shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, _unless the member has the consent of the other lawyer_.

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