Category Archives: legal ethics

The rooster clucks defiant ….

As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others. American Bar Association

The rooster clucks defiant, the lawyer ….s the client. Disputed legal maxim

In my life of 85 years I only rarely had occasion to engage a lawyer. All of the instances in which I did involved either real estate transactions or preparation of a will. Most of these transactions went smoothly enough, but there were exceptions. Too many of these, IMHO.

One case of malfeasance can be described simply enough. Some fifteen years ago I had a neighborhood attorney, whom I shall call Mr. A., prepare wills for Rita and me. Upon completion of this task, A. told us that he would keep the originals in his files, at no charge, so that they could always be found. Some thirteen years later we felt it necessary to revise these wills and tried to get hold of the originals. But A., who was still listed as a member of the NY bar, was nowhere to be found. He had no listed telephone, nor had he bothered to inform Appellate Division of the NY Supreme Court of his whereabouts, as by law he was obligated to do. After about a week of phoning people who had the same last name as he, I located a relative who gave me his then-current address. It took another week or ten days before I could finally wrench our wills out of him. I reported the incident to the legal disciplinary body, which, months later, administered the slightest tap on A’s wrist that it could find.

Comment: lawyers who keep your will for safekeeping do you no favor. It is a common practice whose sole purpose seems to be to ensure more legal business for the lawyer years hence. In the state of New York, the Surrogate Court will file a will for safekeeping; that, IMHO, is the logical course of action to take.

We were victims of an earlier, more complex case of attorney malfeasance twenty years ago.

The matter arose in connection with the sale of our house in Vancouver in 1991. The incident was very painful to me at the time but I cannot say that it caused me actual damage. So, as far as I am personally involved, you might say that the matter is moot. But I think that there remain issues of public concern, and it is for that reason that I am spending time on it now.

I retired from teaching at the University of British Columbia some years before, and Rita and I decided to leave Vancouver to return to New York. We sold our house in the West Point Grey section of Vancouver in March of 1991 in preparation for our return to New York on April 15. We were represented in this sale by a solo-practice neighborhood attorney (Mr. B) with whom we were acquainted because he was a “friend of a friend” (red flag !). The buyer was a member of a very prominent Canadian family and was represented by one of the most prestigious law firms in Canada (firm C.). B. is no longer listed as a member of the British Columbia bar; firm C. seems to have become even more powerful and more prominent in the intervening years, many QC’s serving among its partners (QC, Queens Counsel, is a distinction bestowed by the government upon the most prominent lawyers in Canada). I have now written to the Chair of firm C.; his reply was gracious (he had been a student of mine, it turns out), but he professed ignorance of the case.

The possession date in our transaction was March 31, 1991. On March 25, B. presented us, for the first time, with a Vendors’ Statement that included the following as Note 4:

All parties agree that the representations regarding the sale and purchase of the subject property are not merged in the formal completion of this transaction and survive the execution of the closing documents.

When I questioned B. about the meaning of this provision, he explained that I had represented the house as free from Urea-Formaldehyde Insulation (UFFI) in the pre-purchase stage of the transaction, and that this warranty of freedom from UFFI would ordinarily expire with the formal completion of the sale under the doctrine of merger. Now, B. explained, the “other side” wanted me to sign a waiver of merger so that I would continue to be liable for any UFFI found in the future, apparently in perpetuity.

I explained to B. my position as follows: 1) I had not participated in his negotiation that resulted in the drafting of this waiver, and I do not agree to it; 2) my representation regarding UFFI was made in good faith, according to the best of my knowledge and belief; 3) the buyer had inspected the house in the pre-purchase period, and had not, presumably, found any UFFI. Thereupon B. explained that if I were to demand the deletion of this Note 4, the buyer would interpret that as a sign of guilty knowledge and would back out of the deal. He also said that Note 4 was the fair thing to do. Fair to whom, I asked. I explained to him that it was his obligation to represent my interests, and, in any case, to consult me about making concessions. Nevertheless, he pressed me to sign.

My situation was as follows: my family had packed its belongings and was ready to leave Vancouver within days. To have the buyer back out of the deal at that stage would have been very inconvenient, to say the least. So I did sign, but I also wrote a letter to B. that expressed my great displeasure at his disloyal behavior. I considered it malpractice, and I also wrote to him that, in the unlikely event that his negligence result in damages to us, I would hold him responsible for these.

As it turned out, there never were any subsequent claims about UFFI at this residence, at least not as far as I was informed.

Now here are my conclusions about this affair. Points 1) and 2) are critical of my lawyer, Mr. B.; Point 3) is critical of the law firm that represented the buyer, firm C. Point 4) is critical of both. Point 5) is the most important, and relates to the problem of inequality in legal representation.

1) An attorney should not agree to concessions on behalf of a client without consulting the client.

2) An attorney should not agree to concessions which, once made by this attorney, turn out to be irreversible, even before the client is ever made aware of them.

3) The party adverse in a case like this should be mindful of the behavior of the attorney with whom it is negotiating. It should be careful not to collude with an attorney who appears to violate obligations to his own client.

4) The legitimate concerns of a buyer over possible hidden defects should be met in ways other than binding the seller in perpetuity. I understand, for instance, that it is possible to buy insurance to cover such contingency.

5) As I reconstruct the events in this transaction, it would seem that the great inequality in power and prestige between the attorneys may well have been influential in the outcome. It seems that B. may have felt powerless to stand up to the high-prestige legal team on the other side, and may, for that reason, have agreed to terms that were injurious to his own client.

My Point 5) is of course conjecture. But it might be interesting to look into the problem by consulting other Vendor Statements. How often are there non-merger clauses when the seller is a client of a high-prestige firm, compared to when the seller is represented by low-ranking lawyers ?