Practice Management

In reading the Houston Business Journal, I noticed that "frenemy" is a new word that has been added by the Merriam-Webster's latest collegiate dictionary.  (When I checked, however, it had not been added to Merriam-Webster's online version).

Frenemy is a combination word that has developed, which means one who pretends to be a friend but is actually an enemy.

Now, of course, I suppose that a frenemy can exist in any environment and any profession, but one place that frenemies have to exist is in the practice of law.  And, I am sure they come in all varieties.

Hell, I can probably be accused of engaging in the act myself as there are just some opposing counsel I viscerally dislike, as I am sure there are does that have the same reaction to me.  But, I try to maintain my cool.  Most of the time I am successful.

Many years ago in Tyler, Texas I remember a group of lawyers talking about two particular creditor attorneys that often appeared in court.  One was always in your face and rather upfront with his position, and as a result not much liked by debtors' counsel.  The other one was mostly smiled, shook your hand, had a nice joke for you, unless his creditor client was around or he was in the middle of an actual trial.  Most of the lawyers in the group were bemoaning the 'ol cuss of an attorney.  My law partner at the time, however, disagreed.  He stated that to him the 'ol cuss might be none too friendly but he was upfront with you, his trial tactics were upfront, and he did not lie or mislead you in anything he did or planned on doing.  He was, in short, an open book even if he did not have the greatest personality.  My partner stated, however, that Mr. Likable was deceiving.  He was the kind of guy who would put his arm around you, presumably in friendship, only as a prelude to stabbing you in the back.  He would lie to you, mislead you, withhold evidence from you, and deceive you as to his position in the case.  In fact, he was more likely to do these things when he was holding a winning hand that if you, as opposing counsel, knew about it might end the  in a way favorable to Likable's client.  It was the opinion that he did these things just so he could continue to bill the britches off his own client.

Now, Mr. Likable, is obviously a frenemy of the worse kind.  But, in some ways frenemies are more subtle.  I do not think I fall into Mr. Likable's category.  However, that is really a decision, I suppose, of opposing counsel in my cases.

The more subtle approach, and the camp where I occasionally fall, is in not really caring much for a lawyer on the other side, to the extent I feel the need to buddy up to them and give them advice.  You know the advice, do you not?  You know, if I were you I would not have brought this case, or raised that defense.  In my years of practice, what I have come to learn is that how other's perceive you is important, and you need to be mindful of that.  If you do not have your integrity, what do you have?  Have you considered the ethical ramifications of that action?  Your client is going to get you into trouble.  Have you considered the Rule 11 ramifications of your position? 

My wife and fellow lawyer says that I am "preaching", and then she tells me to stop it.  I usually tell her that "I'm trying to help the guy out".  She usually shots back, "He doesn't want your help".

I am not sure what all of this means really.  Is it better to just be upfront with your disgust and dislike for opposing counsel, or to just put a smile on your face and try not to burn bridges?  It is a good question to which I am not sure I know the answer.  What I do know, however, is that Mr. Likable is still an archfiend because he goes beyond niceties in the face of real emotion.  He deceives for his own profit from his own clients.  So, he might be a frenemy to me, but he also a frenemy to his own clients.  That is never a good thing.