Lawyers' lack of experience, civility a disservice to the profession
By Kirsten McMahon, Associate Editor
When a client has a case that is most certainly going to be lost, counsel has an obligation to persuade them to settle and minimize their damages, Toronto civil and commercial litigator Darryl Singer tells AdvocateDaily.com.
"Our role as litigators is not just to take any case, cash the cheques and fight to the death,” he says. “It's a disservice to the client and to the administration of justice."
Singer — who teaches advocacy, professional ethics at Osgoode Hall Law School and mentors students on these issues at Ryerson University's Law Practice Program — points, for example, to a rash of matters he’s encountered recently where real estate deals didn't close.
“Real estate litigation is a natural part of commercial litigation, and I've done it for my whole career — but I have never seen anything like I have in the past couple of months,” says Singer, who heads the Commercial and Civil Litigation Practice Group with Diamond and Diamond Law.
“The number of sellers coming in saying 'the buyer can no longer close' and they want to sue has increased, but what's more disconcerting is how frequently the buyer’s lawyer doesn't have a concept of what the law is in these cases,” he says. “It goes beyond posturing — the lawyers actually think they're going to win and it does a tremendous disservice.”
As a result, he says he has a number of matters going into relatively time-consuming, protracted and expensive litigation
“This is a perfect example of what I encounter every day,” Singer says. “Even when you have a client in a potentially winning situation, you have an obligation to tell them the cost and time involved by going forward with litigation.”
The inherent conflict of the economic pressure of running a business and acting in the client’s best interests is at play, but there’s also a level of incompetence involved, he says,
“I'm constantly amazed at the number of lawyers — younger lawyers in particular — who don't have the basic foundation of the type of cases they're arguing and who are pursuing things they ought not to,” Singer notes. “In doing so, you're overriding your professional obligations to act in your client’s best interests — which aren't necessarily what the client thinks they are.”
The levels of incompetence could be a result of lawyers dabbling in areas where they don’t have much experience, as well a declining level of mentorship.
“It used to be that as an articling student, you would get a true mentoring experience from a senior lawyer. Now, there are lawyers being mentored by junior lawyers who don't really have the depth of experience to be mentoring,” Singer says.
In litigation — because so many matters are settled, and there’s a push towards alternative dispute resolution — he says there are fewer opportunities for new lawyers to get into court. The big firms often don’t provide new lawyers with client contact or interaction with opposing counsel.
“The problem is when you do get to the level where you have more frequent client interaction or go to court, you lack experience,” Singer adds.
He notes there's a decline in professionalism as well, with less-experienced lawyers picking up the gauntlet of their client and charging ahead with no civility,” he says.
“You factor into that this competing economic pressure — which is arguably greater now than it ever was — and you have far more lawyers competing for a much smaller pie.”