Monday, March 31, 2008

Who's the Lawyer, Who's the Client?

In one of those delicious quirks of fate, one of the first sociolegal scholars to write about the lawyer-client relationship found himself in the position of disgruntled client.

Douglas E. Rosenthal wrote a classic text in 1974 titled, Lawyer and Client: Who's in Charge? Rosenthal counterposes two models of lawyering, the traditional and the participatory. The former is where the lawyer takes control of the relationship and determines the outcome despite the client's desires. In the latter the client is engaged in the decisionmaking and is active in ensuring the outcome fits with the client's wants.

In a study of personal injury claims, Rosenthal shows that lawyers are rather more content with the traditional model than the participatory one. Because of the prevalence of the contingent fee in this kind of work, it works to lawyers' benefit to accelerate the case to settlement rather than wait for full trial or a later settlement. The lawyer manages the claim so that no conflict with the client is apparent. Moreover, even though active clients usually get better results, most clients are unable to cope. They are overwhelmed by the lawyer's reasoning and guile.

Rosenthal has just completed a two and a half year battle with his former law firm, Sonnenschein Nath & Rosenthal (no relation), over his compensation. He claimed $8.2 million for his role in representing the families in the bombing of the Pan Am flight over Lockerbie and for origination credit in representing Sun Microsystems against Microsoft. (Sonnenschein earned $17m for Lockerbie and $20m for Sun.)

The jury, however, awarded him only a million dollars for his efforts. And, to make matters worse, it also gave $300,000 to Sonnenschein for Rosenthal's interference with clients when he left the firm.

Last word from Rosenthal who said he is just relieved the trial is over. “It’s much harder being a client than being a lawyer.”

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