Knowing the right time to stop practicing law is not something that’s taught in law school. Perhaps it should be, because many, many lawyers, litigators in particular, continue to practice law years beyond when they should be doing so. There are tell-tale signs which might help one decide when it’s time to finally say, “enough is enough.”
The Cumulative Effect of Seeing Incompetence in the Practice of Law, as a Motivator for Retiring
One can complain to a Judiciary Committee on the matters related to corporate legal services, or to the watchdog overseeing the quality of practice of attorneys (usually a Law Society or Bar Association, depending on the jurisdiction). But more often than not, regretfully, complaints do not result in a change in practice, attitude or adjudicating. Here are five incidents which could impacted a lawyer’s decision to retire from practice as a litigator, relating to incompetence on both sides of The Bench:
- A judge falling asleep in the courtroom, supposedly adjudicating a family law case – in front of the lawyers and their clients.
- A judge failing to appreciate counsel’s submissions, stating, in front of clients seeking justice or at minimum a complete and fair hearing, “sorry, I was having a seniors’ moment.”
- A client attending for a first interview after prior counsel had cleaned him out financially and achieved virtually nothing for him.
- Judges and Masters making decisions on motions without having read the material.
- In the midst of trial, counsel feeling sorry for the client on the other side, because of the gross incompetence of that party’s attorney.
Most Breaches of Lawyers’ Rules of Professional Conduct are Met With a Slap on the Wrist
Incompetence in the practice of law is one thing, and at times results in a successful claim against one’s lawyer, based in negligence. But breaches of the Rules of Professional Conduct is another. It bothers some litigators, but not all. It seldom results in action against counsel. It’s even rarer for clients to ever learn of the breach. Even worse, at times the client supports that style of practice, and even demands that counsel walk on the wrong side of the ethics line. And the power of the almighty dollar or an arguably skewed perception of the role of counsel (win at all cost), dictates action.
Here are five further incidents, this time relating to breaches of Rules of Professional Conduct (in the Province of Ontario), which could also impact a lawyer’s decision to retire from practice:
- Opposing counsel using a reporting letter inadvertently mailed to him instead of to other counsel’s client, and objecting to the Law Society’s action against him, because he saw nothing wrong with his conduct.
- Hearing “come on, let’s settle this case; there’s no more money left in it for us.” (equity in the home already eaten up in legal fees, and counsel until that point in time having motioned the lawyer and his client to no end, invariably taking unnecessary, costly steps).
- Being literally struck (hit in the arm) outside of the courtroom by opposing counsel who completely lost her objectivity.
- Repeatedly learning of lawyers who have failed to advise clients of the importance of formal Offers to Settle pursuant to the Rules of Practice, and their costs implications, and more generally the practice of counsel to neither correspond with nor reply to correspondence from opposing attorneys.
- Family Court judges failing to enforce normal courtroom decorum, presumably because they consider family law cases different from civil litigation cases; in particular, allowing counsel to address one another when they should be addressing The Court, allowing counsel to be overly argumentative (as distinct from making heart-felt submissions); and judges reprimanding counsel relative to the quality of representation, in front of their clients.
What’s the Real Answer When Faced With the Foregoing Conduct on a Ongoing Basis
Lawyers do retire from private practice, but not solely out of frustration as a result of witnessing the deterioration of the conduct of litigation counsel (mainly in the areas of family law and personal injury) and judges. In fact over the past quarter century the quality of judges has improved significantly, at least in Ontario.
