Lawyer Professionalism and Potted Plants

As part of our orientation, the school arranged a lunch for incoming 1st years and judges/lawyers/professors. The agenda was to discuss professionalism with the incoming students, and we were prompted with a cheat sheet of questions. One question asked us to think of a time when we saw professional/unprofessional behavior by another lawyer and how we responded.

Of course, I had plenty of source material to draw from, but it reminded me of an incident that I don’t recall having shared publicly. In the late 1990s, I was on a telephone call to negotiate on behalf of my client with another lawyer from a well-known Silicon Valley firm. As usual, both of us as lawyers were operating on incomplete information, but the parties were determined to get a deal announced quickly. Opposing counsel suggested that we help the parties by jointly agreeing to some deal points between the two of us. I told opposing counsel that I couldn’t do this as neither of us were in a position to agree to new business points. After some back and forth on this, opposing counsel then said:

“Oh Eric, stop being such a potted plant.”

Now, it’s clear that we as lawyers can’t exceed our authority as agents for our principals, so there’s really not much to discuss. It’s also fairly clear that name-calling is generally out-of-bounds among lawyers, but this is a rather bizarre name to be called.

I asked the incoming 1Ls how they would respond in this situation. Curious what I did? Read on…

I gave opposing counsel the equivalent of a time-out. I didn’t say a word for 1 minute. (At the law firm, our phones had timers on them so we’d know how long to bill the client). I just held the phone silently and watched the clock tick 60 seconds. I can assure you this felt like a very loooonnng time. At the end of the time-out, I reiterated that I could not do what opposing counsel was asking and suggested that we’d best be served by suspending this discussion and reconvening when we had more input from our clients.

Then, later that day, I sent opposing counsel an email saying “I realize that we haven’t met in person, so I thought it might be helpful to see what I look like” and included some URLs like this and this.