The Ethics of Interactions with
Opposing Counsel
By Ellen Lockwood, ACP, RP
Regardless of the area of law in
which you work, dealing with
opposing counsel is often a challenge.
Sometimes the problem is the attorney,
sometimes the attorney’s staff. Opposing
counsel can refuse or be slow to respond
to inquiries or requests, omit information,
or just be unpleasant.
While it may be tempting to respond to
opposing counsel’s unprofessional tactics
and behavior by giving them a taste of
their own medicine, you should always
strive to take the high road. The most
important reason to not resort to the same
actions is because it is unprofessional.
Unprofessional behavior is never considered
ethical.
The ramifications of unprofessional
behavior may be significant. Opposing
counsel may become even more difficult
to deal with. Multiple motions may need
to be filed in order to get opposing counsel
to respond to even basic requests, raising
costs for your attorney’s client and
delaying proceedings. Most important is
that your attorney needs to be able to
show the judge your side was reasonable
and professional in your handling of the
matter and in dealings with opposing
counsel. Your attorney cannot justify his
or her staff ’s unprofessional behavior and
obfuscatory tactics by citing similar behavior
by opposing counsel. In fact, evidence
of professional behavior on the part of
your attorney and his or her staff, especially
when there is documentation of opposing
counsel’s unprofessional or difficult
behavior, may be persuasive when filing
certain motions or requesting particular
kinds of relief for your attorney’s client.
Yet another reason to treat opposing
counsel as you would want to be treated,
regardless of opposing counsel’s tactics, is
that you may need a favor from opposing
counsel. A paralegal I know once received
documents from opposing counsel that
included two documents with the same
Bates number. She called the opposing
counsel’s paralegal to ask how the other
paralegal would like to resolve the issue.
Unfortunately, the opposing counsel’s
paralegal rather rudely insisted that it was
not possible that two document had the
same Bates number. When sent copies of
the documents, the opposing counsel’s
paralegal grudgingly agreed that the Bates
numbers were identical. A few days later,
opposing counsel’s paralegal had to
request a favor of the paralegal who had
pointed out the Bates number problem.
While the paralegal was tempted to refuse
the request, and not even bring it to the
attention of her supervising attorney, she
recognized that to do so would be unprofessional.
Another example of unprofessional
behavior is to complain about opposing
counsel to others. Although those in your
office may grouse about opposing counsel
among yourselves, there is nothing to be
gained by publicly criticizing others in our
profession. You may certainly describe
someone as “difficult,” but disparaging an
attorney or member of their legal staff has
the potential to cause others to view you as
less than professional.
It is imperative to keep your attorney
advised regarding your positive and negative
experiences with opposing counsel. If
opposing counsel or their staff is too difficult,
uses foul language, or is otherwise
completely unreasonable, your attorney
may decide to limit communication to
emails and letters, or request that all communications
be made through him or her.
While opposing counsel and staff may
be adverse to your attorney’s client, this
does not mean the relationship must be
antagonistic. Attorneys for opposing parties
do not need to agree on every point to
grant reasonable requests and have a cordial,
professional relationship.
Ellen Lockwood, ACP, RP, is the Chair of the Professional Ethics Committee of the Paralegal Division and a past President of the Division. She is a fre-
quent speaker on paralegal ethics and intellectual property and the lead author of the Division’s Paralegal Ethics Handbook published by West Legalworks. She may be contacted at ethics@txpd.org.
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