The Challenges of Being a Bad Lawyer

Posted on Categories Alumni Contributor, Legal Practice, Legal Profession, Public

I know this is technically a blog, but, if it were some other social media platform, that right there, my friends, would be “click bait.”  What?? This guest blogger is going to talk about how difficult it is to be a lousy attorney?  But, no, I don’t mean bad lawyer in the sense of legal incompetency or shaky professional ethics; I mean it in terms of being the bad-guy lawyer, the bearer of the bad news, the lawyer whose job it is to tell the client that he or she is not getting a settlement or can’t win the case or …any number of other unhappy communications.

It turns out that I am conflict averse.  That this was news to me was pretty lame because I chose – at age 49! – to go into litigation after graduating law school. In fact, I chose to join the products liability defense litigation practice group when I joined a Milwaukee firm the September after graduation.  For some reason, I imagined that being a litigator would suit my personality, which, as my husband will confirm, likes to win arguments.  But it turns out I didn’t have a very good sense what litigation entailed: rather than using persuasive argument to prevail on some esoteric, high-minded point, litigation is really more like a bare-knuckled battle royale.  For me anyway, there was just too much…conflict.  And, I was too old for it.  It was exhausting.

When I changed course in my legal career and became general counsel for a national insurance trade association, I thought I’d left my conflict days behind me.  But, another epiphany here (and, yes, I really am getting to be too old for these), there is “conflict” even in a legal profession that is primarily transactional.  Broadly speaking, my work for the association entails monitoring and providing legal analysis of state and federal legislation and regulatory activity that affect the association’s membership, advising on various areas of the law affecting the industry, and generally supporting the work and mission of the association.  In other words, for the most part my role as general counsel does not engender much strife; there generally is no one on another side of a “v.”

But, there are times when I must be the “bad” lawyer, and I’ll admit that I find that difficult (but not impossible). I must, on occasion, terminate a contract or deny a claim, knowing that the vendor or claimant is going to be seriously bummed out.  Recently I had to write a termination of employment letter, and, let me tell you, that was hard for me – although not as hard as it was for the recipient to receive, I imagine.  Those days are unhappy days in my practice.  I always flinch a bit emotionally when I take these actions, hoping that nobody shoots the messenger.

You know that old saw: would you rather be liked or respected? For starters, I think that most people reject the premise of the question and want to be both liked and respected.  Yet I think that most people – and certainly most lawyers – would choose to be respected, even if it means they weren’t liked.  For me, if push comes to shove, I would also choose to be respected.  But I would hate making the choice and would hate not being liked.  Perhaps I’m wrong, but I think for most people (or for most attorneys anyway) that hypothetical choice is less ambiguous than it is for me.

The trick of it for me, then, is to reframe my position on those occasions when I must act as the “bad” lawyer: even if it is personally uncomfortable, I am serving my client, and, ultimately, serving my client is doing the work of a “good” lawyer.  I think that litigators see it that same way, in fact.  I remember talking to a very senior litigator in my group at the law firm, and expressing to him that perhaps the reason I was struggling as an inexperienced litigator was because I just hadn’t found the right legal matter that I could “get behind.”  He told me that it didn’t matter what the legal issue was: all a good litigator cared about was “ripping the other guy’s face off.”  Well.  Okay, then. But, while that sentiment is a bit vivid, he didn’t see himself as a “bad” lawyer; he saw himself as the “good” lawyer ripping the other guy’s face off on behalf of his client.

I’m not sure who (if anyone?!) is reading this, but, as I write this blog post, I am imagining that the reader is a current law school student.  Choosing to enter the profession of law means you have chosen a career that in its essence helps people; it is a helping profession.  But understand this: sometimes in order to be a good lawyer, you have to be a “bad lawyer,” which is not always easy!

One thought on “The Challenges of Being a Bad Lawyer”

  1. I will take the click bait and dissent. “Bad” lawyers who see their responsibility as “ripping the other guy’s face off on behalf of a client” disserve and demean the profession. That it pays well does not justify it. That some clients expect it does not excuse it. The Rules of Professional Conduct do not require a lawyer to engage in such tactics or endorse the attitude of that “bad” lawyer. The Rules do not require any lawyer to engage in any behavior inconsistent with the lawyer’s moral compass. “Bad” lawyers are bad lawyers (no quotation marks, air or actual) with a badly magnetized moral compass. We can zealously advocate without engaging in such attitude and tactics. We need not acquiesce in their continuance.

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