When Lawyers Ghost
Lawyers who defend companies and individuals accused by the government of wrongdoing—whether that be a crime, a regulatory violation, or not complying with the terms of a government contract–know that they are at war with the government’s lawyers to defend against the accusation.
Likewise, prosecutors and other government lawyers know they are at war with defense counsel to prove the accusations of wrongdoing.
Even outside the investigatory context, lawyers trying to negotiate an agreement of any sort know their clients may differ on the terms of that agreement, and those lawyers find themselves in a fight as well.
Despite the posture of battle, most lawyers are respectful and courteous. In fact, the American Bar Associations Rules that guide professional conduct advise lawyers that: “The lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.” ABA Model Rule 1.3 cmt.
What does this mean? That even when in pitched battle, call one another, email one another, and even meet with one another to attempt to understand each other’s position and assess whether they can reach some type of agreement. It’s what good lawyers do.
Now, to be clear, these discussions can become argumentative. I mean that in the most positive, lawyerly, sense of the word. Unlike normal people, for lawyers who love practicing law, nothing is more intellectually stimulating then having a good argument with competent, courteous opposing counsel. Heck, my many fabulous years of marriage to a competent, argumentative, opinionated, courteous lawyer are a testament to the exquisite, challenging, and enjoyable art of legal argument.
But, notice my choice of words in describing opposing counsel who are fun to argue with: “competent and courteous”.
Any lawyer can tell you it is a maddening exercise to deal with an opponent who is not courteous or not competent.
For example, I have had opposing lawyers “ghost” me – not return my calls or my emails. In the course of a government investigation of a corporate client, I wanted to understand the government’s position on the investigation. I called, I emailed, I wrote long lawyerly letters trying to just initiate a conversation with the government’s lawyer. I did not receive a return call, no return email – nothing… not even an email saying: “Got your calls and emails and letter, I will not be responding.” It took hours of my time and therefore my client’s funds to locate a person within the government who had the authority to make the lawyer respond to all my calls, emails and letters. With that pressure, the lawyer finally sent an email to me months later. We eventually started talking, kind of…the lawyer actually made someone else at the government call me. (Who, by the way, was civil, courtesy, returned my emails and calls; and was dogged in his investigation - but we talked.) And, this was best for my clients and frankly for the government as well.
When a lawyer ghosts me, it tells me that the lawyer is not only rude but likely incompetent or lacking confidence in their position. And, if a lawyer takes this approach because their client has directed them to do so, it telegraphs to me that the lawyer has no ability to properly counsel their client on how to effectively and efficiently resolve a matter.
Competent lawyers, sure of their position, respond to emails, phone calls and show up at scheduled meetings so they can tell the other side exactly why they are right and that they will be happy to fight it out in court or to walk away from the deal. If a lawyer knows the law and has confidence in their position, they tell the other side.
When a lawyer takes this approach, it puts me and my client on notice that we are dealing with a serious lawyer, who knows the law, the facts, and their arguments. This tells me that I should perhaps re-evaluate my position or strengthen my position with more research or information. Challenging the other lawyer’s position illuminates the legal issues for both sides. It forces each lawyer to think, to analyze and to refine their strategy.
Finally, to all the government lawyers out there who ghost defense counsel: you may have opened an investigation into a company, but, at heart, you are investigating people. And, your investigation causes lots of stress and costs those people a lot of money to be the subject of your investigation—you have a lot of power. When you ghost opposing counsel, you only ratchet up the stress and the cost since their lawyer is forced into expensive litigation that very well may be unnecessary. It also wastes your valuable time because now you have a case languishing on your docket that may have been resolved through a couple of phone calls.
Government lawyers (or any lawyer) who ghost opposing counsel, please stop, call your adversary, tell them why you are right and ask them to explain why they think they are right – in other words, have a passionate legal argument. It’s just being courteous and remember
our justice system depends on spirited debate.