Originally published on April 6, 2009 in our free BigLaw newsletter.
Law students who have done the reading understand the principle that acts of omission can be just as grievous as acts of commission, especially when the law imposes a duty or an expectation of reliance exists. Whether these future attorneys apply this principle when operating their own practices is an entirely different story.
One of These Things Is Not Like the Other …
"Kelly," a fifth year BigLaw corporate associate, was in the offices of target company's outside counsel with her supervising partner, "Todd."
Seated across from her in the conference room was target company's outside counsel: "Brian," a former sixth year associate who had recently left BigLaw to start his own practice. Also in attendance were target company's head of HR and several partners representing co-purchasers. Besides Kelly, it was an all-male cast.
Todd took the lead in purchase agreement negotiations, while Kelly took notes. About 15 minutes into the haggling, Brian interrupted Todd and requested a sidebar among the lawyers to resolve some drafting issues without the client present. Brian, Todd, and the co-purchaser partners stood up to leave the room. Kelly stood up as well.
"Um, actually, I would be more comfortable if you didn't come along," Brian said, leveling his gaze at her.
"What?" asked Kelly. "I'm working on this case, too."
"Sorry," Brian said, clicking a pen and grabbing a notepad. "It would just be better if you stayed here."
The head of HR looked at Kelly, befuddled. Kelly looked at Todd. Todd shrugged. And with that, Todd, Brian and the two partners left the room.
"Weird," the client mouthed.
Bungled Damage Control …
On the way back to the office from the meeting, Kelly told Todd that she was upset that opposing counsel excluded her from the private meeting for no ostensible reason.
Kelly told Todd, "Maybe it's not because I am a woman, but Brian would have not done that if I was a guy.'"
Todd agreed there was sexism at play in Brian's request. That evening he sent Brian an email, BCC'ing Kelly, fuming that excluding Kelly from the sidebar was "totally unacceptable."
The next day, Todd rolled his eyes as he told Kelly of Brian's you-didn't-try-to-stop-it counterargument. "Touche," Todd chuckled.
Dumb and Dumber …
Our analysis of this comedy of errors begins with Brian, who, of course, should not have requested Kelly's exclusion. At worst, his comment was sexist and inappropriate; at best, it was a product of a newly-minted partner's inflated ego. Regardless, Brian's nonsensical request was embarrassing to himself and ultimately to his client. Brian may have later found himself in the awkward position of having his comment reported back by the head of HR to other members of the company's executive team. That can't be good for business.
But once the improper request was out there, it was Todd's responsibility as the partner in charge to defend his colleague. Partners need to advocate for associates because it's the honorable thing to do, and because the best representation of clients by large firms depends on successful and supportive teamwork among the lawyers. Eye rolls and shoulder shrugs may be sufficient for some, but Kelly was enraged with the way her partner handled the situation.
"He should have stood up for me at the negotiations. He should have apologized to me after for failing to do. But no, instead, I had to tell him that I was upset, and only then did he send an email. For Todd to shrug and not make a stink about this jerk excluding me made me feel like I was not important."
But the email was too little too late. Todd's acquiescence to Kelly's exclusion made him look like a pushover in front of opposing counsel and co-purchaser attorneys, and a sexist by transitive property.
Even worse, Todd's inaction undermined morale in the firm's small corporate group, where the story made rounds among associates. When morale is low and associates feel unappreciated, the quality of work declines and productivity decreases. That can't be good for business, either.
Fair and Balanced Coverage
So, of the two professional sins, which one is worse: failing to check one's ego in front of opposing counsel and one's own client or allowing such unprofessional behavior to go unchecked? As they say on Fox News: you decide.
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