Douglas J. Brocker, The Brocker Law Firm
When I first began practicing law in North Carolina, one of my primary mentors told me about a strict policy he followed concerning filing sanction motions against an opposing attorney. His practice was to invite an opposing lawyer to lunch before filing any such motion for sanctions against that attorney. The primary reason for this procedure was to ensure that he had considered the position of, and other potential facts and circumstances from, opposing counsel. It was essentially his private principle of professionalism, to make sure he had the rest of the story, and to potentially preserve an important professional relationship before filing any pleading that explicitly or at least implicitly accused another lawyer of improper conduct.
In the many years since getting that excellent advice, I have followed it consistently and fortunately have never filed a motion for sanctions against an opposing attorney. However, I’ve also expanded the principal to include other types of communications. For example, before sending a letter or email to opposing counsel that might suggest some sort of improper conduct, I’ve strived to speak with the attorney either in person or at least by phone. While I can’t say that this prevented me from sending every adverse communication over the years, there have been many instances where I was very glad that I reached out to make that personal contact and, in many instances, I ended up never sending the letter, email or other communication. In contrast, on the rare occasions where I have sent that type of accusatory communication without making personal contact first, I have typically regretted it and wished that I had reached out first.
While this principle is not perfect, I believe that if opposing lawyers would have more personal communications, including going to lunch or some other meeting, there would be much less acrimony and fewer unprofessional exchanges among lawyers. It is simply harder to file pleadings and send other communications making allegations against an attorney that you know personally. Additionally, understanding others’ positions and being empathetic is a critical part of being a successful attorney.
The theme of the Professionalism Committee for 2019 is, “How do you want to be known as a lawyer, including when you’re gone?” Personally, I want to be known as the kind of attorney like some of my mentors, Ed Gaskins and Judge Franklin Dupree, who treated all lawyers and everyone else involved in the legal and judicial process with respect and professionalism. Taking a lawyer to lunch, or otherwise having direct personal communication, before making any professional accusation is certainly a good way to start.