From the Professionalism Committee

IN NEARLY 30 YEARS of practice in New Hampshire, I have rarely encountered a lawyer I considered unprofessional. I have been fortunate; or, perhaps, not sharply tuned to behaviors that exhibit a lack of professionalism.

I am sensitive to behavior that I consider to be rude, thoughtless, or ungracious. For example, periodically, I work with an attorney who fails to respond in a timely and thoughtful way to a reasonable request, such as reviewing a document or answering a question. Even after follow-up messages are left and correspondence is sent, the lawyer still does not respond. I am not referring to someone who tells you in advance that there will be no response or a late response. What is unprofessional is a lawyer who, without explanation, does not respond at all.

Equally frustrating is the lawyer who responds incompletely or inconsistently to a request. Imagine that you have prepared and sent out a trust agreement, deed, contract, or other legal document with detailed provisions and have requested amendments or revisions, and your client is anxious to resolve the matter quickly and efficiently. You, rightfully, expect the opposing counsel to thoughtfully consider the document and articulate a comprehensive response. You receive a letter or have a telephone conversation that you believe fully outlines the concerns of opposing counsel. Changes are made based on the information you received. Then, you find out there were further concerns that were not addressed, which leads to another round of revisions that could have been avoided had the counselor initially taken the time to do a comprehensive review.

I had a case that went on for two years in the manner noted above. I attribute the delay to a lawyer who was unable, or unwilling, to invest the effort necessary to completely understand and analyze the documents and comprehensively respond. This incomplete and/or inadequate response by lawyers in preparing and refining legal documents is inefficient, costly to both clients, and ultimately unprofessional. The end result is a client left wondering why legal counsel can’t resolve all issues at one—or, perhaps, two—sittings. I am not referring to the case where there is an evolution of ideas and issues that take place over a period of time, for which, of course, there should be prompt and appropriate responses. The concern is the waste of time and resources spent on a legal matter that does not change in any significant way from the first draft through the last.

There are a variety of reasons for such unresponsive behavior. The lawyer simply might be disorganized, or might not have the office procedures or trained staff in place to help bring order to the practice. The lawyer might have too many client files, without sufficient time to reflect and react thoughtfully to each one. The lawyer might not be confident in his or her knowledge of the specific area of the law, and, thus, is insecure and in decisive. Or, there may be personal issues involved—such as substance abuse, family conflict, or marital difficulties—causing paralysis in decision making.

Procrastination, underperformance, and lack of follow up are some of the most common complaints in legal malpractice actions. Whatever the cause of the unresponsiveness, the effect is the same: increased time, excessive fees, and unhappy clients.

Those who must deal with unresponsive attorneys are left with such remedies as writing "nasty grams," threatening to report the behavior to the Attorney Discipline Office or to a senior partner, or appealing to one’s own client to directly contact the other lawyer’s client in order to bring to attention the failure to respond. Any of these remedies might get the other lawyer to respond eventually, but that response sometimes comes at great personal cost to one and resentment on the part of the other.

So, how do you deal with an unresponsive lawyer when the behavior does not rise to the level of a reportable event under the Professional Conduct Code?

Rule 1.1, "Competence," provides that we shall, at a minimum," undertake actions on a client’s behalf in a timely and effective manner including, where appropriate, associating with another lawyer who possesses the skill and knowledge required to assure competent representation." Rule 1.3, "Diligence," provides that a lawyer shall act "with reasonable promptness and diligence."

The most frequent complaint against lawyers by clients is failure to return calls. As stated in The New Hampshire Lawyer’s Professional Creed, adopted by the Bar’s Board of Governors, a New Hampshire lawyer is "competent, self-disciplined, reliable, and responsible." Failure to respond to fellow lawyers in a thoughtful and timely manner leads to costly and inefficient administration of justice. The failure to treat each other with the respect and diligence demanded of us in our representation of clients and before the court, undercuts the public’s opinion of lawyers, and, thus, trust in the legal system.

Our obligation is to be sensitive to the effect our behaviors have on other attorneys, the clients, and the courts. When we do not handle matters diligently, efficiently, and thoughtfully—or try to take on too much or handle matters beyond our competence—we degrade the entire system.

Our relationships with our peers are as important as our relationships with our clients and with the courts. The practice of law is like a three-legged stool, with the relationships with the client, other lawyers, and the court being the legs. If one of the legs is of unequal length, the stool is out of balance. We have an obligation to keep the stool balanced in order to make the administration of justice system work properly.

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