Thursday, February 4, 2010

The “Old Boy Network”*

Although originally used to describe alumni of the same British boys’ school, these days the term "Old Boy Network" commonly means any group more or less loosely tied together by social or professional relationships, so that the aims of its members may be furthered by informal arrangements, accommodation, and short cuts, rather than by strict adherence to the rules. For example, many would regard barristers or trial lawyers who practice in a small geographic area as likely members of an old boy network.

In most quarters, the concept has come into disrepute — particularly when applied to lawyers — because it conjures up visions of backroom transactions aimed at making life easier for the lawyers, as opposed to benefitting their clients. In one episode of John Mortimer’s classic Rumpole of the Bailey series, for example, newly minted barrister, Ms. Liz Probert, introduces herself and, extending her right hand, announces that she has just passed the bar exam. Rumpole admonishes her, saying: "Ah, then we don’t shake hands. The customers don’t like it, you see. They may think we’re making secret deals."†

Obviously, the network can be used to undermine the safeguards of the Rules of Professional Conduct designed to assure that the clients’ interests are paramount. Unscrupulous (or lazy) lawyers have been known to sell their clients down the river for the sake of a quick deal. But despite abuses by some, the informality of the network has too much going for it to be discouraged completely.

If you think about it, the Old Boy Network of trial lawyers, judges and dispute resolution professionals is what, more often than not, facilitates successful mediations. Mutually beneficial settlements are achieved by lawyers who know and respect each other far more often than by lawyers who distrust each other. In fact, I believe that arranging for mediation in the first place can best be accomplished when the lawyers for the litigants grease the wheels in advance by speaking frankly with each other "off the record." President Obama was right; a lot more can be accomplished over a beer than by exchanging bombastic letters or pleadings.

In my view, the best way to avoid the appearance of impropriety, while retaining the benefits of cordial professional relationships, is to be up front with your clients right from the beginning about the need for informality and civility with the other side. If your jurisdiction encourages such behavior,‡ stress that fact with them and be ready to discuss examples illustrating how people generally catch more flies with honey than with vinegar. Keep your clients abreast of the gist — if not the full details — of communications with your opponents; and be prepared to explain how such informality is likely to pay dividends in the long run.

As someone must have once said: "Being an effective advocate doesn’t mean you have to be a jackass!"**

* The photo was selected purposely to illustrate that the "Old Boy Network" is no longer an all-male enclave.

Rumpole and the Blind Tasting, Roger Bamford, Director (Thames Television, Ltd., 1987).

‡ See, e.g., The New Hampshire Bar Association Litigation Guidelines (N.H.B.A., 1999) .

** If nobody admits to originating the quote in 30 days, I’ll claim it!