Lawyers need to wear a number of different hats, and exercise varying skills, when practicing law. Attorneys of course need to conduct legal research and draft the appropriate legal papers so that a client’s interests are best served. Lawyers also need to serve as a conduit between their clients and the judicial system since clients are often not too skilled with the legal process. However, sometimes despite all of the best efforts of lawyers, clients do not satisfy their disclosure obligations, or do not show up for hearings on time, or commit other failures. Courts should not be angry toward a client’s lawyer in such instances since lawyers only have so much control over the acts of their clients.
When I was in Biglaw, I rarely had any communication with clients. Most of that firm’s clients were corporations, and the partners would usually coordinate with in-house personnel in order to satisfy obligations of a legal matter. Moreover, many of our clients had their own counsel who could be relied upon to timely provide information and materials needed to properly handle a legal matter.
However, when I left Biglaw and started working at smaller shops, I had much more contact with the clients whom I was serving. Many smaller clients do not have dedicated lawyers in house who can handle legal matters. Most smaller companies have one person who has many jobs — one of which is handling legal claims related to the company. In addition, when serving individuals, it is less likely that the client will have a legal background and understand the importance of procedures and deadlines during a litigation or transactional matter.
Over the course of litigation, attorneys need to constantly request that clients help them with information related to an issue or compiling documents related to a matter. In many instances, there is no way that lawyers can obtain such materials or information without the assistance of clients. If information or materials are not timely provided, adversaries can file motions against the party not providing materials, and the matter could be brought before a court.
I have attended numerous oral arguments and discovery conferences at which courts seem pissed off that materials or information have not been provided to date. However, likely because the attorney is present at the conference and the client is not, courts usually direct their anger at lawyers and not their clients. This is usually unfair. Of course, sometimes lawyers do not ask their clients for information or documents earlier in a matter, and this can delay an issue. However, most of the time, lawyers have contacted clients to obtain information and materials and clients have not provided responses either because they are too busy or do not understand the urgency of providing information or documents. It is of course fine for a court to ask an attorney what efforts have been undertaken to obtain the requested materials or information, but it is usually not fair to direct anger toward attorneys over the fact that information or materials have not been provided by clients to date.
At other parts of a case, lawyers need to produce their clients for deposition or testimony to be given at a hearing or at trial. It is usually a hassle to schedule a deposition or a client’s testimony at trial since clients have a lot of obligations and it is difficult to impart sometimes how important it is to be available for testimony. Usually, after significant back and forth, clients will agree to provide testimony at a given time and date.
Nevertheless, sometimes clients do not show up, even though the lawyer did everything in their power to remind the client of the testimony and where and when they should be present to provide such testimony. At court conferences, judges can sometimes be upset that clients did not show up for court conferences, and it is fine to be mad that lawyers wasted the court’s time and the time of other lawyers for not showing up to trial, a hearing, a deposition, or some other event during the litigation process. However, it almost never makes sense to be mad at a lawyer for such an issue since a lawyer has limited control over whether a client will show up to an event after they have been given notice about the situation. Nevertheless, in my experience, courts routinely scold lawyers when their clients miss depositions, court hearings, and the like, and unless this is a shortcoming by the lawyer in notifying the client of an event, this frustration is almost always misplaced.
In the end, a lawyer’s job is difficult enough as it is, and attorneys have limited control over their clients. As a result, courts should spare lawyers from their wrath at a client’s acts or omissions since attorneys have limited control over whether a client provides information, attends a hearing, or completes other steps over the course of a matter.
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 [email protected].
