The Ethics of Interactions with Opposing Counsel

Ellen Lockwood, ACP, RP

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.