{"id":4286,"date":"2005-12-20T13:55:38","date_gmt":"2005-12-20T17:55:38","guid":{"rendered":"http:\/\/blogs.law.harvard.edu\/formerlyknownas\/2005\/12\/20\/clients-who-ruin-christmas-an"},"modified":"2011-08-05T14:54:18","modified_gmt":"2011-08-05T18:54:18","slug":"clients-who-ruin-christmas-and-lawyers-who-let-them","status":"publish","type":"post","link":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/2005\/12\/20\/clients-who-ruin-christmas-and-lawyers-who-let-them\/","title":{"rendered":"clients who ruin christmas (and lawyers who let them)"},"content":{"rendered":"

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A week ago, Slate<\/EM>‘s Dahlia Lithwick started a contest looking for tales <\/FONT><\/DIV>
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of “the meanest thing you’ve ever done to an opponent on the holidays” <\/FONT><\/DIV>
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or other “stories of hideous pre-holiday lawyer shenanigans.”  (Slate<\/FONT><\/A><\/EM>,<\/FONT><\/DIV>
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“<\/FONT>Billable Horrors<\/FONT><\/A>,” Dec. 13, 2005).  Naturally, <\/FONT>Walter Olson<\/FONT><\/A> used Dahlia’s<\/FONT><\/DIV>
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lark as an occasion to seriously condemn such malicious mischief (without <\/FONT><\/DIV>
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offering <\/FONT>solutions) (<\/FONT>Grinch, Esq<\/FONT><\/A>) <\/FONT>and Prof. <\/FONT>Bainbridge fretted<\/FONT><\/A> that he might <\/FONT><\/DIV>
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actually <\/FONT>have to show up for Jury <\/FONT>Duty this week — delaying his consumption <\/FONT><\/DIV>
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of <\/FONT>duckling and vinous liquids.  <\/FONT><\/DIV>
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\"tiny Before I get to my main points, please let me do a <\/FONT><\/DIV>
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bit of (nit)picking on Steve.  Writing on Monday<\/EM>, Dec. 19, Prof. <\/FONT><\/DIV>
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Bainbridge says “And I can’t help but think that nobody’s <\/FONT><\/DIV>
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really going to start a trial this late in the week<\/EM> before <\/FONT><\/DIV>
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Christmas.”  That makes me wonder just how much of <\/FONT><\/DIV>
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a buffer Prof. B. thinks is appropriate around the Holiday-<\/FONT><\/DIV>
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Christmas celebration?  As an academic, Steve has ap-<\/FONT><\/DIV>
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parently lost touch with the vast majority of his profession <\/FONT><\/DIV>
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— not to mention the rest of the population — who need to <\/FONT><\/DIV>
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be on call should their clients or bosses need them during <\/FONT><\/DIV>
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what teachers must think of as “off-peak” and inviolable hours <\/FONT><\/DIV>
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and weeks. <\/FONT><\/DIV>
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<\/FONT> <\/DIV>
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In addition, I can already hear Steve’s  complaints over     \"courthouseN\"<\/FONT><\/DIV>
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California taxes being wasted with empty court buildings the <\/FONT><\/DIV>
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weeks before and after Christmas, were it not his<\/EM> duckling get-<\/FONT><\/DIV>
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ting cold.   For most of us, many issues depend on whose oxen <\/FONT><\/DIV>
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are being gored, but Prof. B is — god bless him — more willing <\/FONT><\/DIV>
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than most of us to reveal his myopia on his website. (On the <\/FONT><\/DIV>
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other hand, you can’t say he has no sense of <\/FONT>humor<\/FONT><\/A>.)<\/FONT><\/DIV><\/BLOCKQUOTE>
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In my many years serving as a Law Guardian — a lawyer appointed <\/FONT><\/DIV>
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to represent a child in NYS, usually in Family Court — I often had to <\/FONT><\/DIV>
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deal with Christmas Season visitation issues.   This was among the <\/FONT><\/DIV>
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topics most dreaded by the court and court staff.   As much as I <\/FONT><\/DIV>
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knock divorce lawyers, I can’t say that I’ve ever seen one who was <\/FONT><\/DIV>
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the instigator<\/EM> of such battles, but I can definitely say that many of <\/FONT><\/DIV>
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them made things much worse by going along with or feeding the <\/FONT><\/DIV>
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anger or paranoia of their clients.  <\/FONT><\/DIV>
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<\/FONT> <\/DIV>
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\"NoSantaGS\"<\/FONT><\/DIV>
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<\/FONT> <\/DIV>
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By their nature, Christmas and Christmas Eve and Christmas <\/FONT><\/DIV>
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Vacation issues often arise just before Christmas — often because <\/FONT><\/DIV>
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one estranged parent has unilaterally declared that he or she would<\/FONT><\/DIV>
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not follow their court-ordered arrangements, or wasn’t going to bring <\/FONT><\/DIV>
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the child(ren) back on schedule, or was leaving on vacation with them.<\/FONT><\/DIV>
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At that point, if a parent contacted me, as the Law Guardian, I would <\/FONT><\/DIV>
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attempt to<\/FONT> “mediate” a solution that focused on the child’s welfare.  <\/FONT><\/DIV>
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That was often possible, when the parents were appearing pro se<\/EM>, but<\/FONT><\/DIV>
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at times the lawyers would get in the way of a resolution — usually <\/FONT><\/DIV>
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because they needed to show they were the client’s protector (which <\/FONT><\/DIV>
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just happened to run up a few billable hours).  At times, they threatened <\/FONT> <\/FONT><\/DIV>
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me<\/EM> with ethical <\/FONT>sanctions for talking to their <\/FONT>clients out of their presence <\/FONT><\/DIV>
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(a bogus threat in the context of Law <\/FONT>Guardians, in my opinion, and a <\/FONT><\/DIV>
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risk I willingly took in hundreds of <\/FONT>instances — at $25 per hour!).<\/FONT><\/DIV>
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\"tiny One older lawyer, a former Family Court judge, made <\/FONT><\/DIV>
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such a threat, when I called to ask him to telephone <\/FONT><\/DIV>
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his client to calm her down and get her to follow the <\/FONT><\/DIV>
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Court order.  He screamed so loudly at me that I <\/FONT><\/DIV>
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said “call me back when you can hold a civilized <\/FONT><\/DIV>
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conversation” and I hung up.  He never called back. <\/FONT><\/DIV>
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He didn’t want to call his client, because she was <\/FONT><\/DIV>
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a factory worker who had a hard time paying his fees. <\/FONT><\/DIV>
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<\/FONT> <\/DIV>
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\"phone  In the end, I got the couple to stick to the con-<\/FONT><\/DIV>
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sent <\/FONT>order,  <\/FONT>where one parent had the one-year-old <\/FONT>child <\/FONT><\/DIV>
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Christmas <\/FONT>Eve overnight and <\/FONT>the other all day on Christ-<\/FONT><\/DIV>
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mas (with <\/FONT>the roles switched the next year).<\/FONT><\/DIV><\/BLOCKQUOTE>
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Earlier this year, f\/k\/a<\/EM> had a post discussing Valedictorian Litigation, <\/FONT><\/DIV>
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(counsellor or mercenary?<\/FONT><\/A>), in which I had the following reaction <\/FONT><\/DIV>
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to <\/FONT>John Steele’s <\/FONT>saying<\/U> “isn’t this <\/EM>another case where people were <\/EM><\/FONT><\/FONT><\/DIV>
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out of control before they <\/EM>called for lawyers?<\/EM>“<\/FONT><\/FONT><\/DIV>
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I’d like to add these excerpts <\/FONT>to my WISTful<\/EM> <\/FONT>quotation — <\/FONT><\/DIV>
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Wish I Said That — collec<\/FONT>tion .  They’re by Sol Linowitz<\/FONT><\/A> <\/FONT> <\/FONT><\/DIV>
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(from DCBA <\/EM><\/FONT>Briefs<\/EM>, <\/FONT><\/FONT><\/FONT>Betrayed Profession<\/FONT><\/EM><\/A>, <\/FONT><\/FONT>June 1999):   <\/FONT><\/FONT><\/DIV>
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“Elihu Root . . . put the matter more simply: ‘About <\/FONT><\/DIV>
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half the practice <\/FONT>of a decent lawyer,’ he once said, <\/FONT><\/DIV>
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‘consists in telling would-be clients <\/FONT>that they are <\/FONT><\/DIV>
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damned fools and should stop.’<\/FONT><\/DIV>
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<\/FONT> <\/DIV>
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“Today there are too few lawyers who see it as <\/FONT><\/DIV>
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part of their function <\/FONT>to tell clients (especially new <\/FONT><\/DIV>
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clients) that they are damned fools and <\/FONT>should stop: <\/FONT><\/DIV>
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Any such statement would interfere with the marketing <\/FONT><\/DIV>
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program. The public pays, because the rule of law is <\/FONT><\/DIV>
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diminished.”<\/FONT><\/DIV><\/BLOCKQUOTE>
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\"SolLinowitz\"<\/FONT><\/DIV>
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<\/FONT> <\/DIV>
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Later in the same chapter, titled “Living the Law,” Linowitz   <\/FONT><\/DIV>
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notes:<\/FONT><\/DIV>
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“The doctrine that professionalism means respect for <\/FONT><\/DIV>
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the client’s <\/FONT>‘autonomy’ and commands doing whatever <\/FONT><\/DIV>
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the client wants is, <\/FONT>after all, most convenient. Nobody <\/FONT><\/DIV>
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ever lost a client by doing <\/FONT>exactly what the fellow wanted, <\/FONT><\/DIV>
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but much lucrative legal work <\/FONT>has been sacrificed by lawyers <\/FONT><\/DIV>
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who regretfully told prospective <\/FONT>clients that this was some-<\/FONT><\/DIV>
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thing they were not willing to do.”<\/FONT><\/DIV><\/BLOCKQUOTE>
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Thanks again, Lawyer Linowitz.<\/FONT><\/DIV><\/BLOCKQUOTE>
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Many lawyers do<\/EM> try to serve that role as counsellor — especially when they <\/FONT><\/DIV>
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don’t want to upset their own Holiday plans.  As Law Guardian (and as a <\/FONT><\/DIV>
\n
divorce mediator), I often got <\/FONT>to see just how unreasonable clients could be <\/FONT><\/DIV>
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— and I could also see how <\/FONT>anger and distrust fed on itself.   My best story <\/FONT><\/DIV>
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of a “client” trying to ruin my<\/EM> <\/FONT>Christmas goes like this:<\/FONT><\/DIV>
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<\/FONT> <\/DIV>
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                                                                                   \"snow<\/FONT><\/DIV>
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Before 8 AM the day after Christmas, the non- <\/FONT><\/DIV>
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custodial Father of an 8-year-old called me at <\/FONT><\/DIV>
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my home-office saying that as Law Guardian <\/FONT><\/DIV>
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I had a duty<\/EM> to go get his daughter and bring <\/FONT><\/DIV>
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her to him.   He explained that he called the <\/FONT><\/DIV>
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Mother’s home that morning and was told the <\/FONT><\/DIV>
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child was not there.   I pointed out to him that <\/FONT><\/DIV>
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(1) we had two feet of snow overnight and there <\/FONT><\/DIV>
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was a snow emergency, with no driving allowed;<\/FONT><\/DIV>
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and (2) the Mother lived at the top of the highest <\/FONT><\/DIV>
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hill in town.<\/FONT><\/DIV>
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<\/FONT> <\/DIV>
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\"snowFlakeS\" “SnowFlakeS”<\/FONT><\/DIV>
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<\/FONT> <\/DIV>
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The Father continued angrily to insist that I <\/FONT><\/DIV>
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had a duty to make his visitation happen.  As <\/FONT><\/DIV>
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he babbled, I learned two more things: (1) the <\/FONT><\/DIV>
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girl was with her stepfather at a hospital, <\/FONT><\/DIV>
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because (2) her Mother went into labor over-<\/FONT><\/DIV>
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night and had delivered a baby that morning. <\/FONT><\/DIV>
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None of these facts seemed to help the Father <\/FONT><\/DIV>
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— an otherwise bright man — see just how <\/FONT><\/DIV>
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silly he was being.  I told him I’d call him in <\/FONT><\/DIV>
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a day or so to see what I could arrange, and <\/FONT><\/DIV>
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I requested that he not call my home before <\/FONT><\/DIV>
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9 AM ever again.  Because the Court was <\/FONT><\/DIV>
\n
virtually closed — for all but child abuse and <\/FONT><\/DIV>
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domestic violence cases — that week after <\/FONT><\/DIV>
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Christmas, I was relieved that the Father <\/FONT><\/DIV>
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would not be filing any violation petition that <\/FONT><\/DIV>
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week.<\/FONT><\/DIV><\/BLOCKQUOTE>
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Sometimes, going to court around Christmas cannot be <\/FONT><\/DIV>
\n
avoided.   Many courts have figured out ways to protect <\/FONT><\/DIV>
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themselves from Holiday shenanigans.   Lawyers acting <\/FONT><\/DIV>
\n
as true counsellors — telling their clients when they are <\/FONT><\/DIV>
\n
being unreasonable or acting crazy — is often the best <\/FONT><\/DIV>
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safeguard.   Until both clients and lawyers are perfect, <\/FONT><\/DIV>
\n
there will be new Holiday Horror Stories for Walter to <\/FONT><\/DIV>
\n
write about and Steve to fear. <\/FONT><\/DIV>
\n
<\/FONT> <\/DIV>
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\n

\n

\n

\n
from Mom’s to Dad’s<\/FONT><\/DIV>
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the clickity-clack<\/FONT><\/DIV>
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of suitcase wheels<\/FONT><\/DIV>
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<\/FONT> <\/DIV>
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  Alice Frampton<\/STRONG><\/FONT><\/A>, <\/FONT><\/DIV>
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       from New Resonance 3<\/STRONG><\/A><\/FONT><\/EM><\/FONT><\/DIV><\/BLOCKQUOTE>
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<\/FONT><\/EM> <\/DIV><\/DIV><\/BLOCKQUOTE><\/BLOCKQUOTE>
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<\/FONT><\/EM> <\/DIV>
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\n
 <\/DIV>
\n
 <\/DIV>
\n
waiting room–<\/DIV>
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the ex-wife<\/DIV>
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looks past me<\/DIV>
\n
 <\/DIV>
\n
 <\/DIV>
\n
 <\/DIV>
\n
 <\/DIV>
\n
 <\/DIV>
\n
 <\/DIV>
\n
 <\/DIV>
\n

\n

\n
custody hearing<\/FONT><\/DIV>
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seeing his arms cross<\/FONT><\/DIV>
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i uncross mine<\/FONT><\/DIV><\/BLOCKQUOTE>
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 <\/DIV><\/DIV>
\n
 <\/DIV>
\n
   Roberta Beary<\/FONT><\/A><\/FONT><\/FONT><\/FONT><\/DIV>
\n
         A New Resonance 2<\/FONT>:<\/FONT><\/A>; pocket change<\/EM><\/FONT><\/FONT><\/FONT><\/FONT><\/DIV>
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<\/FONT><\/EM> <\/DIV>
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<\/FONT><\/EM> <\/DIV><\/DIV>
\n

\n

\n

\n

\n

\n
my toddler <\/SPAN><\/SPAN><\/FONT><\/DIV>
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helps pack her travel bag —<\/SPAN><\/SPAN><\/FONT><\/DIV>
\n
co-custody<\/SPAN><\/SPAN><\/FONT><\/DIV>
\n
<\/SPAN><\/SPAN><\/FONT> <\/DIV>
\n
<\/SPAN><\/SPAN><\/FONT> <\/DIV>
\n
<\/SPAN><\/SPAN><\/FONT> <\/DIV>
\n
<\/SPAN><\/SPAN><\/FONT> <\/DIV>
\n
<\/SPAN><\/SPAN><\/FONT> <\/DIV>
\n
<\/SPAN><\/SPAN><\/FONT> <\/DIV>
\n
<\/SPAN><\/SPAN><\/FONT> <\/DIV>
\n
 <\/DIV>
\n

\n

\n
piano practice<\/DIV>
\n
our scowling child plays <\/DIV>
\n
Ode to Joy<\/EM><\/DIV><\/BLOCKQUOTE><\/BLOCKQUOTE><\/SPAN><\/SPAN><\/SPAN><\/SPAN><\/FONT>
\n
<\/SPAN><\/SPAN><\/FONT> <\/DIV>
\n
    Tom Painting<\/EM><\/STRONG><\/FONT><\/A>    <\/EM><\/FONT><\/DIV>
\n
        from his haiku chapbook<\/FONT> <\/EM><\/FONT><\/FONT>piano practice<\/EM><\/STRONG><\/FONT><\/A> <\/EM><\/FONT><\/DIV><\/BLOCKQUOTE><\/BLOCKQUOTE><\/BLOCKQUOTE><\/BLOCKQUOTE>
\n
<\/FONT><\/EM> <\/DIV>
\n
<\/FONT><\/EM> <\/DIV>
\n
<\/FONT><\/EM> <\/DIV>
\n
<\/FONT><\/EM> <\/DIV>
\n

\n
Christmas Day <\/SPAN><\/FONT><\/DIV>
\n
  the exchange<\/SPAN><\/FONT><\/DIV>
\n
    of custody<\/SPAN><\/FONT><\/DIV>
\n
<\/SPAN><\/FONT> <\/DIV>
\n
<\/SPAN><\/FONT> <\/DIV>
\n
     <\/FONT>John Stevenson<\/STRONG><\/FONT><\/A> <\/FONT><\/SPAN><\/FONT><\/DIV>
\n
         from <\/FONT>Some of the Silence<\/STRONG><\/FONT><\/EM><\/A><\/SPAN><\/FONT><\/DIV>
\n
<\/SPAN><\/FONT> <\/DIV><\/DIV>
\n

\n

\n

\n

\n

\n
                                                              \"snowFlakeS\"    “wolf Dude negF”<\/FONT><\/EM><\/DIV>
\n
<\/FONT><\/EM> <\/DIV><\/BLOCKQUOTE><\/BLOCKQUOTE>
\n

\n

<\/SPAN><\/SPAN><\/FONT> <\/P><\/FONT><\/FONT><\/BLOCKQUOTE><\/BLOCKQUOTE><\/BLOCKQUOTE><\/BLOCKQUOTE><\/BLOCKQUOTE><\/BLOCKQUOTE><\/p>\n","protected":false},"excerpt":{"rendered":"

A week ago, Slate‘s Dahlia Lithwick started a contest looking for tales  of “the meanest thing you’ve ever done to an opponent on the holidays” or other “stories of hideous pre-holiday lawyer shenanigans.”  (Slate, “Billable Horrors,” Dec. 13, 2005).  Naturally, Walter Olson used Dahlia’s lark as an occasion to seriously condemn such malicious mischief (without offering solutions) (Grinch, Esq) […]<\/p>\n","protected":false},"author":94,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_feature_clip_id":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":false,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2},"jetpack_post_was_ever_published":false},"categories":[2926],"tags":[],"class_list":["post-4286","post","type-post","status-publish","format-standard","hentry","category-pre-06-2006"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/p6kP1R-178","_links":{"self":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts\/4286","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/users\/94"}],"replies":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/comments?post=4286"}],"version-history":[{"count":1,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts\/4286\/revisions"}],"predecessor-version":[{"id":12858,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts\/4286\/revisions\/12858"}],"wp:attachment":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/media?parent=4286"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/categories?post=4286"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/tags?post=4286"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}