Providing Assistance to Senior Members of the Bar

Posted by Frederick Iobst of the Office of Disciplinary Counsel on July 26, 2011

A growing concern at the Office of Disciplinary Counsel ("ODC") is the number of senior lawyers who no longer practice law with the competence and diligence required by the Delaware Lawyers' Rules of Professional Conduct ("Rules"). Lawyers who grew up with rotary telephones and typewriters are now swimming in new technology that permits and demands immediate responses to clients' questions and needs on a 24/7 basis. It is a changed world and many senior lawyers are resistant or unable to change. Moreover, many senior members of the Bar do not have the energy or the interest to work at the frenetic pace they once relished. As well, some senior members may suffer from mental deficiencies that impede their ability to provide the services expected of a member of the Delaware Bar. What obligations do Delaware lawyers have to protect the public in these circumstances?

Some large Delaware firms have recognized the issues involving older lawyers and have imposed mandatory retirement ages. However, many lawyers in both large and small firms continue to practice as if age had no meaning. It is a sad day when a respected lawyer (of any age) is referred to the Office of Disciplinary Counsel by a judicial officer for performance deficiencies or a client files a complaint that discloses unacceptable performance. It is particularly troubling when it is a lawyer of substance whose practice has suddenly fallen off a cliff. In some cases, the lawyer has simply been negligent for one reason or another (reduced time in the office without providing coverage, not understanding rules changes, or failing to grasp the new world of e-discovery, websites and social networking). However, there are also cases of lawyers who, because of their mental incapacity, do not even know that their performance has dropped off, or refuse to acknowledge the impact their mental deficiencies has on their practice.

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Civility: Keeping Your Cool

Posted by Jim Drnec of Balick & Balick LLC on July 18, 2011

Maintaining one’s composure in the face of the day-to-day demands of the legal profession can be challenging, especially when confronted by a particularly aggressive litigant on “one of those days” when everything seems to be exploding.  I have, on occasion, found myself at the tipping point when that e-mail or letter arrives from opposing counsel that tears the last remaining nerve.  Perhaps it subtly, or not so subtly, impugns your client’s character, or motives, or somehow calls into question your own. The impulse may be to respond in kind, blistering your opponent and escalating the conflict.  I have a few rules that I try to follow to avoid “e-mail regret.” 

First, decide whether an immediate response is really necessary.   If possible, I try to give myself 24 hours.  If I can come back to the issue the next day, it often looks different after a good night’s sleep.  If not, then a walk around the block is a good idea to try to gain some perspective.  Another approach I have found useful is first to respond with a telephone call rather than in writing.  Tone and inflection cannot be conveyed in an e-mail and at times the matter may be taken in a manner not intended by the writer.  A conversation can clear any misunderstandings, and lead to a more productive written response confirming the facts.  Above all, I try to avoid a written response in the heat of the moment.

What means have you found to help you avoid escalating conflict?