Representing the Individual Defendant

Most attorneys entered the legal profession to practice law, not psychology. Unfortunately, we occasionally find ourselves thrust by our calling into situations in which we seem to play the role of a psychotherapist.

Defending someone accused of harassment, discrimination, retaliation or other unlawful practices can be daunting, particularly if the stakes are high. Often, our client is facing myriad stressors. These can include the embarrassment of being sued, feelings of guilt, concern over how the suit will affect future employment, financial stress over defense costs and/or a possible judgment, and even conflicts at home when the family members learn of the accusations. Because our role as legal counselor gives us unique access to intimate facts, and because we are in a position of trust, it is natural for our clients to treat us as confidants. Criminal defense and divorce lawyers are very familiar with this fact.

A client's trust is a gift and should be nurtured because access to the truth can enable us to see and appreciate defects in our opposition's case, as well as to anticipate potentially damaging evidence. However, it also puts a heavy weight of responsibility on our shoulders.

Effectively managing this additional responsibility can be a burden and may require that appropriate boundaries be set early and communicated clearly. Remember that we are not hired to be psychologists; few of us are trained in this capacity and our clients are paying for legal representation, not emotional counseling. Some of these boundaries may include scheduling appropriate times and durations for client meetings and phone conferences, and limiting e-mail communication. Excessive e-mail unrelated to the development of the defense can also be distracting.

By the same token, however, while boundaries are important, a little empathy with the client's situation can go a long way. Assuming that appropriate boundaries are established, it is not unreasonable to expect that our clients, whose reputation, livelihood, savings and family may be on the line, may require a few extra minutes during phone calls to make sure that they completely understand what is going on, and that they know we are committed to their defense. We must remind ourselves that our clients are ordinary people who may be facing extraordinary stress.

Client Control

At the other end of the spectrum, from the unrealistic burdens of being both psychologist and lawyer, are those individual clients who do not respect ' and may even ignore ' our professional judgment and advice. This conduct can result in problems of client control. Whether the conduct stems from a persistent wish to deny the reality of a bad situation, or perceived inadequacies in our skill or judgment, dealing effectively with this challenge is crucial to a successful defense and often requires diplomacy.

Many individual clients have never been involved in litigation. In some cases, they are amazed that a plaintiff with nothing more than fabricated, one-sided allegations ' no evidence, no corroboration ' can file a complaint that places the client's entire personal and professional future at risk for months or even years. Other clients are utterly bewildered by the legal process, particularly the apparently glacial pace between the filing of a complaint and any kind of evidentiary adjudication.

Cooperation from clients puzzled or frustrated by legal proceedings can often best be gained through education. Patient, careful explanation of each step of the legal process will help clients understand why the court cannot just “see through” the meritless allegations of the plaintiff's complaint and simply dismiss the case out-of-hand. It helps them see why discovery is necessary for the parties to unearth evidence for the court to rely upon in making determinations.

Allow extra time when preparing uncooperative clients for deposition and trial testimony. Do not expect they will listen and heed suggestions the first time. It may be useful to employ video during testimony preparation sessions, to help the client see that poise, manner of dress and calm, careful responses to examination questions really do make a difference.

It is also important, when working with an uncooperative client, to give special attention to the search for information. It is seldom enough to send the client a set of written discovery propounded by the plaintiff and expect the client to read carefully or search diligently for responsive information or documents. One or more in-person meetings, perhaps at the client's residence, in which each discovery request is considered, can be far more productive.

When working with the doubtful or uncooperative client, it is crucial that the attorney keep his/her own frustration in check. Remember that the client's issues likely have nothing to do with the attorney's competence and judgment, and more to do with the client's turbulent sea of emotions. Individual clients are not unlike unruly children in this regard.

Duty of Loyalty

Most attorneys, when retained by an employer or insurance carrier to defend an individual, do not expect to confront an ethical conundrum. Indeed, while we send a separate engagement letter to the individual defendant, and file separate pleadings on his or her behalf, the interests of the individual and employer defendants are often so closely aligned that an ethical conflict may never arise.

But this is not always the case. Circumstances arise in which the interests and goals of the employer and/or its insurance carrier and the individual diverge dramatically. Examples of this might involve the procurement or production of evidence or efforts to suppress evidence which could benefit the employer, but be unhelpful or even damaging to the individual's defense. Employers and carriers can be surprisingly insistent under such circumstances. An extreme instance could even place future retention of the lawyer by the employer or carrier at risk if the lawyer disagrees or acts inconsistently with the employer/carrier's desires.

It is crucial under these circumstances to remember that, though the attorney is in a tripartite relationship, his/her duty of loyalty is to the client, even if the client's legal bills are paid by the employer or another source. The attorney's commitment to the client must be unwavering. If adherence to this crucial mantra is anticipated to present a problem, it may be preferable to pass on a particular engagement.

Confidential Communications

Another issue, which involves similar concerns to the duty of loyalty, arises out of the attorney-client privilege. Most lawyers share the view that access to the truth is of paramount importance in developing and implementing an effective defense. Without the truth, we are shadow boxing and vulnerable to being blindsided. When representing an individual accused of harassment or discrimination, the best source of truth is likely to be the clients themselves.

There is never any guarantee that clients will be totally candid with their lawyers. However, a person is far more likely to share the truth, particularly if it is damaging and/or embarrassing, if he or she believes the communications are absolutely protected from disclosure by the attorney-client privilege.

Beyond the crime-fraud exception, there is rarely any reason to compromise the attorney-client privilege, even if the content of the communication pertains to matters of interest to the employer which are unrelated to the case or attorney's representation. Even sharing of information we perceive to be harmless could impact our client's present or future employment. More importantly, it erodes our client's trust in us and, on a larger scale, the confidence of the public in our legal system. We must take steps to ensure that the tripartite nature of the relationship between an attorney, the individual defendant and the employer or carrier funding the defense does not sully our unwavering loyalty to our client.

Conclusion

Representing the individual defendant in an employment suit for discrimination, harassment or retaliation can prove challenging. When not playing the role of psychotherapist, we may find our advice falling on deaf ears and struggling to get client's cooperation. Ethical issues, including loyalty to our client and the sharing of information gained through attorney-client communications, can arise in unexpected ways.

Navigating these waters often requires communication of clear attorney-client interpersonal boundaries, a willingness to take the time to educate our client about the legal process and strict adherence to the basic ethical principles which are the backbone of our profession.

Alex W. Craigie is a partner in the Los Angeles office of Dykema Gossett PLLC. His practice presently focuses on employment litigation. He also serves as Assistant General Counsel to the law firm. Reach him at [email protected], or at 213-457-1750.

Attorneys are routinely asked to represent an individual co-worker or supervisor, as well as the employer defendant. However, not every such engagement is routine. Sometimes, because of the risk that evidence will be unearthed during discovery that could create an actual conflict between the employer and the individual defendant, separate counsel is retained from the start to represent the individual alone. Either situation can present unique challenges.

The aim of this article is to examine a few of these challenges. It focuses in particular on the inherent risk of unwittingly assuming the role of psychotherapist, the difficulty of gaining control over the demanding or doubting client, ethical situations arising from pressures from the employer or its carrier, and the sharing of information learned through attorney-client communications. Suggestions are provided that focus on effectively managing these challenges.

The Reluctant Psychologist

Most attorneys entered the legal profession to practice law, not psychology. Unfortunately, we occasionally find ourselves thrust by our calling into situations in which we seem to play the role of a psychotherapist.

Defending someone accused of harassment, discrimination, retaliation or other unlawful practices can be daunting, particularly if the stakes are high. Often, our client is facing myriad stressors. These can include the embarrassment of being sued, feelings of guilt, concern over how the suit will affect future employment, financial stress over defense costs and/or a possible judgment, and even conflicts at home when the family members learn of the accusations. Because our role as legal counselor gives us unique access to intimate facts, and because we are in a position of trust, it is natural for our clients to treat us as confidants. Criminal defense and divorce lawyers are very familiar with this fact.

A client's trust is a gift and should be nurtured because access to the truth can enable us to see and appreciate defects in our opposition's case, as well as to anticipate potentially damaging evidence. However, it also puts a heavy weight of responsibility on our shoulders.

Effectively managing this additional responsibility can be a burden and may require that appropriate boundaries be set early and communicated clearly. Remember that we are not hired to be psychologists; few of us are trained in this capacity and our clients are paying for legal representation, not emotional counseling. Some of these boundaries may include scheduling appropriate times and durations for client meetings and phone conferences, and limiting e-mail communication. Excessive e-mail unrelated to the development of the defense can also be distracting.

By the same token, however, while boundaries are important, a little empathy with the client's situation can go a long way. Assuming that appropriate boundaries are established, it is not unreasonable to expect that our clients, whose reputation, livelihood, savings and family may be on the line, may require a few extra minutes during phone calls to make sure that they completely understand what is going on, and that they know we are committed to their defense. We must remind ourselves that our clients are ordinary people who may be facing extraordinary stress.

Client Control

At the other end of the spectrum, from the unrealistic burdens of being both psychologist and lawyer, are those individual clients who do not respect ' and may even ignore ' our professional judgment and advice. This conduct can result in problems of client control. Whether the conduct stems from a persistent wish to deny the reality of a bad situation, or perceived inadequacies in our skill or judgment, dealing effectively with this challenge is crucial to a successful defense and often requires diplomacy.

Many individual clients have never been involved in litigation. In some cases, they are amazed that a plaintiff with nothing more than fabricated, one-sided allegations ' no evidence, no corroboration ' can file a complaint that places the client's entire personal and professional future at risk for months or even years. Other clients are utterly bewildered by the legal process, particularly the apparently glacial pace between the filing of a complaint and any kind of evidentiary adjudication.

Cooperation from clients puzzled or frustrated by legal proceedings can often best be gained through education. Patient, careful explanation of each step of the legal process will help clients understand why the court cannot just “see through” the meritless allegations of the plaintiff's complaint and simply dismiss the case out-of-hand. It helps them see why discovery is necessary for the parties to unearth evidence for the court to rely upon in making determinations.

Allow extra time when preparing uncooperative clients for deposition and trial testimony. Do not expect they will listen and heed suggestions the first time. It may be useful to employ video during testimony preparation sessions, to help the client see that poise, manner of dress and calm, careful responses to examination questions really do make a difference.

It is also important, when working with an uncooperative client, to give special attention to the search for information. It is seldom enough to send the client a set of written discovery propounded by the plaintiff and expect the client to read carefully or search diligently for responsive information or documents. One or more in-person meetings, perhaps at the client's residence, in which each discovery request is considered, can be far more productive.

When working with the doubtful or uncooperative client, it is crucial that the attorney keep his/her own frustration in check. Remember that the client's issues likely have nothing to do with the attorney's competence and judgment, and more to do with the client's turbulent sea of emotions. Individual clients are not unlike unruly children in this regard.

Duty of Loyalty

Most attorneys, when retained by an employer or insurance carrier to defend an individual, do not expect to confront an ethical conundrum. Indeed, while we send a separate engagement letter to the individual defendant, and file separate pleadings on his or her behalf, the interests of the individual and employer defendants are often so closely aligned that an ethical conflict may never arise.

But this is not always the case. Circumstances arise in which the interests and goals of the employer and/or its insurance carrier and the individual diverge dramatically. Examples of this might involve the procurement or production of evidence or efforts to suppress evidence which could benefit the employer, but be unhelpful or even damaging to the individual's defense. Employers and carriers can be surprisingly insistent under such circumstances. An extreme instance could even place future retention of the lawyer by the employer or carrier at risk if the lawyer disagrees or acts inconsistently with the employer/carrier's desires.

It is crucial under these circumstances to remember that, though the attorney is in a tripartite relationship, his/her duty of loyalty is to the client, even if the client's legal bills are paid by the employer or another source. The attorney's commitment to the client must be unwavering. If adherence to this crucial mantra is anticipated to present a problem, it may be preferable to pass on a particular engagement.

Confidential Communications

Another issue, which involves similar concerns to the duty of loyalty, arises out of the attorney-client privilege. Most lawyers share the view that access to the truth is of paramount importance in developing and implementing an effective defense. Without the truth, we are shadow boxing and vulnerable to being blindsided. When representing an individual accused of harassment or discrimination, the best source of truth is likely to be the clients themselves.

There is never any guarantee that clients will be totally candid with their lawyers. However, a person is far more likely to share the truth, particularly if it is damaging and/or embarrassing, if he or she believes the communications are absolutely protected from disclosure by the attorney-client privilege.

Beyond the crime-fraud exception, there is rarely any reason to compromise the attorney-client privilege, even if the content of the communication pertains to matters of interest to the employer which are unrelated to the case or attorney's representation. Even sharing of information we perceive to be harmless could impact our client's present or future employment. More importantly, it erodes our client's trust in us and, on a larger scale, the confidence of the public in our legal system. We must take steps to ensure that the tripartite nature of the relationship between an attorney, the individual defendant and the employer or carrier funding the defense does not sully our unwavering loyalty to our client.

Conclusion

Representing the individual defendant in an employment suit for discrimination, harassment or retaliation can prove challenging. When not playing the role of psychotherapist, we may find our advice falling on deaf ears and struggling to get client's cooperation. Ethical issues, including loyalty to our client and the sharing of information gained through attorney-client communications, can arise in unexpected ways.

Navigating these waters often requires communication of clear attorney-client interpersonal boundaries, a willingness to take the time to educate our client about the legal process and strict adherence to the basic ethical principles which are the backbone of our profession.

Alex W. Craigie is a partner in the Los Angeles office of Dykema Gossett PLLC. His practice presently focuses on employment litigation. He also serves as Assistant General Counsel to the law firm. Reach him at [email protected], or at 213-457-1750.